1833. WHITELOCK would scarcely be distinguishable from each other." That difficulty might arise if proof of the handwriting of the party were the only means of showing his identity, as the latter judgment seems to assume; but other MUSGRAVF. evidence might be adduced, e. g. his presence at the time the note was prepared, as in Nelson v. Whittall, or his residence at the place mentioned in the instrument, as in Mitchell, executor, v. Johnson (a). [Bayley B. The subscribing witness, if called, might be asked as to the defendant's identity.] It is true. that Lord Tenterden, in Page v. Mann (b), held, that proof of the handwriting of a deceased subscribing witness was sufficient, but the handwriting of the defendants themselves was afterwards proved. [Bayley B. That was an action for use and occupation on an agreement for a lease, which probably described the party as living at the particular place which he had occupied, so as to connect him with the subject-matter of the action.] Mitchell v. Johnson (c), which was an action on a bond executed by a marksman, and attested by the plaintiff, is nearer this case. There, however, Lord Tenterden said, "Here is some evidence beyond the mere proof of the attesting witness's signature, viz. that defendant once lived at the place of which the party executing the bond was described to be." What he adds after is submitted to be extra-judicial. "If there were no other, I should have no doubt of its sufficiency. If the objection were to prevail, it would often be impossible for the obligee of a bond to recover, where the subscribing witness was dead, and the obligor a marksman.” Even if the difficulty of giving some such evidence of the defendant's identity was greater than it generally is, it would not prevail against 1833. WHITELOCK v. the law or reason of the case. In Kay and Others v. Brookman and Others (a) Best C. J., in the absence of the subscribing witness abroad, acted on Lord TenMUSGRAVE. terden's opinion, but on the ground of convenience only. [Bayley B. The deed produced in evidence showed the defendants to be directors and proprietors of the Cliff Down mining company, and was likely to have described each as of his place of abode.] Godfrey v. Norris (b) and Wallis v. Delancey (c), earlier cases on the subject, show Mr. Justice Bayley's judgment in Nelson v. Whittall to be founded on the former law. In the first, where the plaintiff was the only subscribing witness, Parker C. J. thought that evidence of the obligor's handwriting, and of his letters mentioning the bond, was sufficient to entitle the plaintiff to recover; and in Whittall v. Delancey Lord Kenyon expressly required evidence of the obligor's handwriting. Again, in Gough v. Cecil (d), which was an action on a bond attested by two witnesses, one of whom was dead, and the other beyond the jurisdiction of the court, Lord Loughborough nonsuited the plaintiff for not proving the obligor's handwriting; and Gould J. afterwards agreed with him, though Nares and Heath Js. differed, and a new trial was afterwards granted. Memot v. Bates (e) and Parkins v. Hawkshaw (f) show it to be necessary that the witness of the execution should also know the party executing to be the defendant. All the defendant contends for is, that some evidence should be given, affording reasonable ground, to identify the party sought to be charged with the party who has executed the instrument. [Bayley B. The (a) 1 M. & M. 286. (b) Stra. 34. (c) 7 T. R. 26 n. (d) C. B. Trin. 24 G. 3, cited from Serjt. Hill's MS. 21. p. 78; Sel. N. P. 7th ed. 535; and 1 Luders on Elections, p. 269. 1833. WHITELOCK ซ. court should have reasonable ground to believe that the act of execution was done by some party answering the description of the party to be charged.] The defendant is not driven to contend that the handwriting of the MUSGRAVE. party sought to be charged must be proved. That is only one mode of proof among others. In many cases the subscribing witness knows the defendant, but where, as in this case, the subscribing witness was called in to attest the execution of a stranger, the necessity arose for proving the defendant's identity of person, because the matter in issue required evidence to elucidate it, and was not proved by showing the defendant to be of the same name (a). Thus in an action for adultery, as the register does not prove the identity of the parties, some evidence is always given to identify the persons married with it. The like in proving a person to have been previously convicted under 7 & 8 G. 4. c. 28. s. 11. He Milner in support of the rule. Proof of the handwriting of a subscribing witness, shown to be dead or out of the jurisdiction, is in all cases sufficient primâ facie evidence to entitle a plaintiff to recover. was not here called on to prove identity, for being payee of the note he must be presumed to have acted rightly, and to have sued the defendant, knowing him to be the party who signed the note. It was for the defendant to show either that he was not the person who signed the note, or to proceed criminally against the plaintiff for malpractice in attempting to fix on him a misplaced liability. [Bayley B. Here we do not presume but that all was rité actum; we take it for granted that the note in question was signed by some Francis Musgrave, but we do not know and can (a) See Doe d. Hanson v. Smith and Another, 1 Campb. 196.; Hodgkinson v. Willis, 3 id. 401; Rex v. Morris, 2 Bur. 1189; Bull. N. P. 239; S. C.; and see Com. Dig. tit. De Idemptitate Nominis. 1833. WHITELOCK V. not predicate that he was the defendant.] But if identity be a necessary part of the plaintiff's case, it should be made out, like other issues, by legal evidence, not MUSGRAVE. by evidence leading to it short of it; now to prove the handwriting of the party sought to be charged as signing the instrument, would be contrary to the cases in which, in actions on bonds, proof of the obligor's handwriting has been held unnecessary (a). [Bayley B. There are other modes of giving reasonable evidence of a defendant's identity besides proving his handwriting.] The defendants having resided or being at Reeth, would be no evidence of his identity with the party named in the note; and if after signing the note at R. he removed to London, that removal and the service of process on him in London must be shown. The case in Bull. N. P. 171, does not affect this position, for it assumes the subscribing witness to be in the box, in which case the plaintiff must take the chance of what he may prove. Nelson v. Whittall first set up the necessity of proof of identity. In the older cases, collected in Viner's Abridgment, tit. Evidence, [T b 48. pl. 3.] the rule is laid down without making identity requisite to be proved, "where there are two witnesses to a deed who are dead, if there is full evidence to prove one of their hands, and any evidence that endeavours have been used to find one to prove the other's hand, it is sufficient, for perhaps the witness might be a stranger, and it would be a hard task to prove his hand; Smart v. Williams (b)." Pl. 10. "If a witness to a deed is dead, it is sufficient to prove his hand without the hand of the party." (c) Pl. 13. "If both witnesses are beyond sea, proving the hand of the (a) Adam and Wife v. Kerr, 1 B. & P. 360; Prince v. Blackburn, 2 East, 250; Milward v. Temple, 1 Camp. 375. (b) Comb. R. 248; Pasch. 6 W. & M. B. R. party is not sufficient, but in such cases it is usual to (c) Stra. 34. (e) Stra. 833. (g) 2 Taunt. 223. (i) 2 Id. 282. (d) 1 Peere Wms. 289. (f) 1 Ld. Ray. 784, 1833. WHITELOCK V. MUSGRAVE. |