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of the handwriting of a deceased subscribing witness not sufficient without proving the obligor's handwriting, and nonsuited the plaintiff for want of such proof. MUSGRAVE. But the court set aside the nonsuit, on the ground that the fact to be proved by an attesting witness is, that he saw the party execute; and if he cannot be found, his handwriting is allowed to be evidence of the fact. Adam and wife v. Kerr was debt on a bond, attested by two witnesses, one of whom was dead, and the other resident beyond reach of the process of the court at the trial, and it was held sufficient to prove the handwriting of the deceased witness without other proof (a). [Bayley B. That was because the evidence given substantiated every thing on the face of the paper, but that does not show that the defendant was the obligor who signed it.] Currie v. Child (b) is like Adam v. Kerr, and identity never was mentioned. Lord Ellenborough said, in Nelson v. Whittall, that where the subscribing witness is dead, it had been the constant practice never to look at any thing beyond his handwriting. Cunliffe v. Sefton (c) arose on a bond, one attesting witness to which was not to be found, and the other had since become interested as administratrix to the obligee, and was the plaintiff; but proof of the handwriting of the latter was held sufficient; and the observations of Grose J. apply. [Bayley B. Other evidence of the obligor's acknowledgment of the debt was there offered in aid of that proof. It was only refused by Chambre J. because he thought the absence of the subscribing witness not sufficiently accounted for (d). Vaughan B. The point generally in question has been, whether the attendance of the subscribing

(a) 1 Bos. & P. 360. So though it did not appear that the living witness was domiciled or settled abroad; Prince v. Blackburn, 2 East, 250. (b) 3 Camp. 283.

(c) 2 East, 183.

(d) That cause seems to have been undefended at nisi prius.

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witness could be dispensed with or not.] Wallis v. Delancey does not show the necessity to prove the defendant's identity, and it was not then settled as it is now, that the obligor's handwriting need not be proved. MUSGRAVE. The latter observation also applies to Coghlan v. Williamson (a). Page v. Mann, Kay v. Brookman and Mitchell, executor, v. Johnson, show that the modern practice supports the argument for the plaintiff. In Mitchell v. Johnson, the obligor was a marksman, and the subscribing witness was the plaintiff. Lord Tenterden held the signature of the plaintiff would alone be sufficient evidence. That answers the distinction founded on the fact of the maker of this note being a marksman.

[Bayley B. When a subscribing witness is called, and after proving the execution of the instrument, answers on cross-examination, that he did not know the person who executed, it is not to be presumed that he was the defendant, but the plaintiff is nonsuited. Now, according to the argument for the rule, had the subscribing witness died just before he was called, proof of his handwriting only would have enabled the plaintiff to recover. But, in the latter case, as in the present, his attestation would be evidence of every thing on the face of the instrument, viz. of every thing he as attesting witness asserts; now by his attestation he does not assert or attest that this defendant signed the note, but that some Francis Musgrave did. That F. M. is left unidentified and unconnected with the person sued; but the issue to be proved is, that this Francis Musgrave executed. The learned baron also cited 1 Starkie onEvidence, 328, 329.]

Cur. adv. vult.

The court delivered judgment on another day in the term.

(a) Doug. 89, 93.

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BAYLEY B. This was an action on a promissory note to which there was a subscribing witness; and the only question was, whether after his death or resiMUSGRAVE. dence abroad out of the jurisdiction of the court, had been established in evidence, the note could be read against the defendant upon mere proof of the handwriting of that subscribing witness? The only evidence for the plaintiff was that of Hardie, a relation of the subscribing witness, who knew his handwriting, and that he was gone to Canada; but was wholly ignorant of the defendant's abode or circumstances. The note was dated at Reeth in Yorkshire, and purported to be signed by two marksmen, named Musgrave, their places of residence not being stated or proved. The witness Hardie could not say whether either of them lived or had lived at Reeth or had any connection there. The defendant therefore not being identified by any evidence with the party signing, the question arose whether naked evidence of the handwriting of the subscribing witness was sufficient to fix the defendant with the amount of the note.

The plea of the general issue puts the plaintiff to prove, not only that the instrument was executed, but also that it was executed by the defendant. In many cases the instrument gives some description of the party sued, e. g. by stating his residence or addition. His residence, if so stated, gives some ground to presume that a party proved to reside in that place, was the party signing the note. In many instances, proof of the handwriting of the party executing is given to assist the judgment in identifying him with the person sued (a); but this plaintiff's case rests nakedly and alone on the proof of the subscribing witness's handwriting, the evidence adduced being a mere blank as to all else. The only reasonable effect

(a) See the cases cited by the learned baron, ante, 543.

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that can at the utmost be given to the attestation of the subscribing witness is this, that those facts which he so attested are the true facts of the case. Thus if the party signing is described as A. B. of S. M. in the MUSGRAVE. county of S. clerk, the proof of the subscribing witness's handwriting at the utmost proves only that A. B. of S. M. in that county, clerk, executed the instrument. But it is still essential to give some evidence that the defendant is that A. B. by whom the instrument was executed. Then what does the attestation of this instrument prove in the present case? Why, that it was duly executed by a person named Francis Musgrave. There may be many persons of that name in the kingdom, and if the plaintiff fails to show any connection between the defendant and that Francis Musgrave whose signature to the note the subscribing witness attests, he does not make out that execution to have been made by the defendant, which it is necessary to your case to prove. For the subscribing witness's merely seeing the note executed is not sufficient (a); by whom it was executed is still an essential part of the inquiry in order to support the plaintiff's case, and it would not be enough if a subscribing witness was to say he saw it executed. If, on further question by whom he saw it executed, he should say, "It was executed by a man who came into the room, and who they told me was so and so, and lived at a certain place; but I do not know whether that was true, or whether he was the defendant or not," the plaintiff would make out no case. That is, because in order to recover on an instrument signed by any person, it is essential to prove it to have been executed by the defendant in the suit. On principle, some evidence must be given to identify

(4) See observations of Grose J. in Cunliffe v. Sefton, 2 East, 187; Parkins v. Hawkshaw, 2 Stark. R. 259; Middleton v. Sandford, 4 Camp. 34.

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the defendant with the party who signed the instrument sued on. In Godfrey v. Norris (a), there was evidence of the obligor's identity, by proof as well of MUSGRAVE. his handwriting as of that of the subscribing witness. In Wallis v. Delancey (b), Lord Kenyon required the obligor's handwriting to be proved as well as that of the subscribing witness, who was out of the jurisdiction of the court. I agree that it is not requisite to prove the handwriting of the party bound by the instrument, but proof of his identity with the defendant is essential; and if it is not established by proving his handwriting, some other evidence must be given to connect the defendant with the instrument attested by the witness. In Nelson v. Whittall that other evidence of identity was given.

The counsel for the plaintiff has insisted that to require such evidence of identity, would be to impose a great hardship on plaintiffs; but the hardship is no greater in these than in other cases, where a plaintiff sues without being furnished with proof that the party sued is the person by whom the instrument sued on was executed. The instrument might have described the defendant on the face of it as Francis Musgrave of Reeth in the county of York, carpenter; and if it had, the cases establish that proof of the handwriting of the subscribing witness would be sufficient to show that it was signed by a person truly described as being of that name and place, but still the plaintiff must have shown that the defendant corresponded with that description. In this, as in other cases, it may happen that if you trust the knowledge of the signature of the instrument to one witness who dies, the testimony is lost; but it might in general be supplied by proof of some acknowledgments made by the party charged on demand of payment from him, or that his residence, &c. or situation in life, tallied with the description in the instrument. By these, or (a) Stra. 34. (b) 7 T. R. 266 n.