1833. SARGENT v. COWAN and Another. an officer under the sheriff is liable as such, but acts here as officer of the coroner. BAYLEY B.-If the defendant's attorney, by putting Simpson's name on the writ, desired the coroner to employ Simpson to execute it, and he was employed accordingly, he became the coroner's officer and not the sheriff's. The other Barons concurred. Rule refused. tion will not be allowed as 'costs in the cause' on a defendant's undertaking to pay to assignees of bankrupt attornies the taxed amount FEATHERSTONHAUGH and Another, assignees &c. against KEEN. Costs of taxa- THE assignees of P. and S. bankrupts, attornies at Worcester, sued for a bill due to the bankrupts. An order was granted to the defendant to tax the bill on his undertaking to pay the taxed amount, and the costs of the action; and the officer having taxed off more than one-sixth of the bill, allowed the plaintiffs the costs of taxation as costs in the cause; but on motion to review taxation the court directed those costs to be disallowed. of a bill of costs due to the latter, and the "costs of the action." 1833. WHITELOCK against FRANCIS Musgrave. ASSUMPSIT against one of the makers of a joint Where a written instrument sued on abroad out of the court at and several promissory note, attested by one William Young, and signed by three persons; two of is attested whom, including the defendant, were marksmen. The by a subscribing witness whole body of the note was written by the subscribing who is dead or witness. Plea, general issue. At the trial at Guildhall the reach of at the sittings after last Michaelmas term, Hardie, the the process of nephew of the attesting witness, swore that he was now the time of the resident in Upper Canada, and proved his hand- trial, it is rewriting. On cross-examination he said he did know where either defendant or plaintiff lived, or any thing about the defendant or his connexions, or about his making his mark to the note. It was objected that the plaintiff could not recover without giving some charged under evidence of the identity of the defendant with the Francis Musgrave who had signed the note; and Mr. Justice Bayley's judgment in Nelson v. Whittall (a) not was cited. For the plaintiff, the practice of Lord Tenterden and Best C.J. at nisi prius, in Page v. Mason (b), Mitchell v. Johnson (c), and Kay v. Brookman (d), was relied on, to show that such evidence was not deemed requisite by those judges. The learned baron (Bayley) said, that the mere proof of the defendant's handwriting was good evidence that some F. Musgrave had signed that note, but that the jury must decide whether the defendant was that person. Verdict for the defendant. The learned baron gave leave to move (e) to (e) See Tidd, 9 ed. 904; 2 Chitt. R. 271; without such leave the motion could only have have been for a new trial; but see the end of this case. quisite to give some evidence that the party who signed the instrument is the defendant sought to be it, as well as 1833. WHITELOCK v. MUSGRAVE. enter a verdict for 251. the amount of the note. In Hilary term Milner moved accordingly. The plaintiff, as payee, must have known who the party was from whom he received the note, and being in possession of it, must therefore be taken to have sued the proper person. In Nelson v. Whittall (a) the indorsee being plaintiff, the payee might have been called as a witness by the plaintiff (b). In Vin. Abr. tit. Evidence [T b 48], the cases are collected, and it is broadly laid down that if a subscribing witness is beyond sea, or dead, proving the hand of the party is not sufficient, but proof of the absence or death of the subscribing witness and his handwriting is sufficient. In Nelson v. Whittall a doubt was thrown on the sufficiency of such evidence. [Lord Lyndhurst C. B. Why was it there proved that the defendant was present in the room when the subscribing witness prepared the note, except to show his identity with the person sued? The judgment for the plaintiff turned on that circumstance. It would be very extraordinary if some evidence of identity was not necessary. As far down as Memot v. Bates, H. 4 G. 2. reported in Buller's Nisi Prius, 171 b. the rule was, that on non est factum a plaintiff must prove the execution of the deed, and proof of execution by one who called himself B. is not sufficient, if the witness did not know it to be the defendant. In Middleton v. Sandford (c), Dampier J. ruled that evidence must be given that the defendant was the person proved to have executed a bond in the presence of a witness, to whom he was previously and subsequently unknown. The (a) 1 B. & Ald. 1. 8. (b) Bayley on Bills, 4 ed. 422. above passage, in Buller's Nisi Prius, 171, was also Buller J. lays down a rule in Adam v. Kerr (b), inconsistent with Memot v. Bates, viz. that where attesting witnesses are abroad or dead, their handwriting, when proved, is evidence of every thing on the face of the paper, and that an obligor's handwriting need not be proved. [Bayley B. In Godfrey v. Norris (c) Coghlan v. Williamson (d), Wallis v. Delancey (e), Barnes v. Trompowsky (ƒ), the handwriting of the obligor, as well as that of the absent attesting witness, was proved. In Middleton v. Sandford evidence of identity was given. The description of the obligor generally appears on the face of a bond, but the person here making the note is a marksman, and his abode is unknown.] According to Page v. Mann› Kay v. Brookman, and Mitchell v. Johnson, the judge should have directed the jury that there was primâ facie evidence of the defendant being the party signing the note. A rule having been granted in order to review the authorities, 1833. WHITELOCK บ. MUSGRAVE. 1833. WHITELOCK บ. MUSGRAVE. Wightman and Addison showed cause. The whole of this note is in the handwriting of the subscribing witness, who is gone to Canada. Then as a marksman cannot prove that the mark attached to his name was not made by him, this defendant is without remedy, if, as will be contended, proof of the subscribing witness's handwriting is sufficient to enable the holder of the note to recover upon it. That fact is alone sufficient to distinguish this case from actions against obligors of bonds whose names purporting to be written by themselves appear on the face of the bonds, and thus enable them to disprove their execution, by witnesses, if the signatures are not genuine. In Nelson v. Whittall (a), Bayley J. says, "It is laid down in Mr. Phillipps's Treatise on the Law of Evidence, that proof of the handwriting of the attesting witness is in all cases sufficient. I always felt this difficulty, that that proof alone does not connect the defendant with the note. If the attesting witness himself gave evidence, he would prove not merely that the instrument was executed, but the identity of the person so executing it. But the proof of the handwriting of the attesting witness establishes merely that some person assuming the name which the instrument purports to bear executed it, and does not go to establish the identity of that person, and in that respect the proof appears to me defective." The judgment of Abbott J. there must be confessed to tally with his subsequent practice when chief justice. He says, "I am by no means prepared to say that proof of the handwriting of an attesting witness is not sufficient. If it had been necessary in ancient times to prove, besides the handwriting of an attesting witness, that of the party also, a great difficulty would have arisen, for in those times the parties seldom wrote, but merely fixed their marks, which (a) 1 B. & Ald. 21. |