Page:United States Reports, Volume 2.djvu/122

 at! Cases ruled and adjudged in the i *79*-. - — ` j April Term, 1791. · · · Douci.ass’s Leffee vnfu Saxnmtsox. . UT N the trial of this caufe, before judge Bnux, at Nj R 25-I Q Prim, in Cumfvrlarzrh in .A?5'UHlEb!}‘ 1790, the Plaintiff ' ` o red in evidence a deed, and to prove its execution by the R.  hand writing of one of the witnefles, who was dead. The other wd witnefs was {aid to be dead alfo; and, to prove this, they of- ° 5 red the Plaintiff himfelf, to teflify that the witnefs had former- 1; lived inPbi!ad:Q>bia, that he had made enquiries for him, and heard he was dead. This teilimony was objefted to; but on argument he was admitted, the ]udg,c referving the point. The Plaintiff then offered a leaf, {aid to be cut out of a fa- mily bible, on which were written the names of the children of one 1lI*JlIicbacI, under whom the leifor of the plaintiff claimed, with the times of their refpeétive births; which leaf was annexed to a notarial certificate from another State, fetting forth, that the fame was cut out of the bible, in his, the Notary’s, prefenee, and that the fame was {wom before him, to be the property, and family bible, of the [aid }l·I•1l¢Iic}uuI, then deceafed. '1` 0 this exception was alfo taken ; but the evidence was admitted, and the point in like manner referved. On the return of the Pqim, Bmqjirzl obtained a rule to {hew caufe why there {hould not be a new trial, and at April term tygr, the caufe was argued. Bfdlyflfdy for the defendant, contended, that the evidence ought not to have been admitted in either cafe. Uponthe ppint, he faid, the rule was, that the fubferibing witnefs muil: produced, unlcfs pr-rgfbe made that he is dead or cannot be found. That this proof mult be by dilinterelled witneffes. That a party might be admitted in cafe of necellity, as where a writing had been loft, and in fimilar cafes; yet this was only ex nerjtute. That the fail: in queltion was capable of proof by various means; by the regifter of his burial; by perfons ac- quainted with him; by general report teftilied by difintereited witneliies. That in this cafe ftriét proof was required. The rule laid down in 2 Ali. 48. H¢·n{y v. Pinilqu, is, that the court: would not require a certificate of the funeral, yet there mult be evidence of his death; flriél: proof ii he reiided abroad, but {lighter evidence if he relidcd in England. '1`hat it was analo- _ gnu:}

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