
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1804.
    Manigault v. Hampton.
    Proof that inquiry has been made for the subscribing witness to a deed, and that reasonable diligence h .s been used to find him, or obtain information ot him, without success, will be sufficient to let in proof of his handwriting, without proving that he is actually dead, or absent from the State. And where the handwriting of two other subscribing witnesses, and of the grantor, had been proved, and the deed was old, it was held that the jury might presume, that the signature of the witness not accounted for was his handwriting, without further proof. Vide Turner v. Moore, ante, 236.
    Motion to set aside a nonsuit, ordered by Trezevant, J. in Rich'land district. This was an action to try titles to iand. In proof of his title, the plaintiff produced in evidence a deed of conveyance of twenty seven years standing, and proved the death of the grantor, or person conveying, and his handwriting; and also the death and handwriting of two of the subscribing witnesses to the deed. But there was another name subscribed as a witness to the deed, James Bunzie. whose death was not proved, nor his absence from the State. No satisfactory account was given of him. IS appeared, however, that subpoenas were taken out for him, and lodged in the office of the sheriff of Charleston dis.rict ;■ and as the deed appealed from circumstances to have been executed in Charleston, it seemed probable that this witness, if alive and in the State, would be found in Charleston district. It appeared further, that inquiries had been made respecting him in Richland district, but no information was obtained. Col. Thomas Taylor, an old and respectable citizen, who had resided in the neighborhood of Columbia ever since the date of the deed, and prior thereto, being examined upon the trial, could give no information concerning any person of the name of Bunzie,
   Trezevant, J.

being of opinion that this proof of the deed was not sufficient, nonsuited the plaintiff. And now upon this motion, Egan, for the plaintiff, cited 7 R. 261.

The court were of opinion that the deed should have been left to the jury, upon prooí of the handwriting of Bunzie, the evidence given. That ii was not absolutely necessary to prove the witness actually dead, or absent, in order to be intitled to give evidence of his signature, or handwriting: but if it appears that the party has used reasonable diligence to find the witness, or ascertain what has bqcome of him, it is sufficient. Inquiry, to be sure, ought to be made at the places where it is most probable that information of the witness may be obtained, as at the places of residence of the obligor, or grantor, and obligee, or grantee. 2 East, 183. Doug, 93. 7 T R. 262, 263. The only question in this case is, whether the plaintiff has used due diligence with a view to find what has become of this man. If he has made u.eof reasonable diligence, and has been unable to obtain any information respecting the witness, he has done enough to intitle him to give evidence of the handwriting ; and if the hand wiring cannot he proved after such a, lapse of time, iu a case like this, where the handwriting of two other subscribing witnesses, aud also the hand of the grantor, have been proved, the deed may he permitted to go to the jury, and they may presume that the signature of the third witness is bis handwriting. If no account can be given of him, it will be presumed that he is either de.-d, or absent beyond the process of the court. 1 Bos. & Pul. 360.

Nonsuit set aside, and a new trial granted.

Present, Orimke, Waties, Johnson, Trezevant, and Beevard, Justices ; Bay, J. absent.

Note fn the book last cited, it appears that a bond was executed abroad; and that one attesting witness was dead, and the other beyond the process of the court: and it was ruled, that the handwritina ot one of them alone was necessary to be proved The case of a deed is different from the case of a will. Vide Hopkins v. Albertson, ante, 240.  