Beaufort County NcArchives Court.....Selby, V. Clark 1826 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:19 pm Source: Nc Court Reports Vol 11, 1826 Written: 1826 CASES ARGUED AND DETERMINED IN THE SUPREME COURT of NORTH CAROLINA. JUNE TERM, 1826. SELBY v. CLARK. From Beaufort. Proof of the hand-writing of a subscribing witness, uuder a temporary absence of the witness without a change of domicile, shall not be received, for it might lead to great abuses: but where a witness leaves the State in the exercise of a public duty (as in the case of a member of Congress) all presumption of collusion is repelled, and his hand-writing may be proved. This was an action of trespass on the case, tried before Ruffin, Judge. On the trial, it became material for the plaintiff to give in evidence a bill of sale for a slave, to which Richard Hines, Esq., was the subscribing witness; it had been heretofore proved and registered upon the testimony of the subscribing witness. Mr. Hines had been elected a representative of the district to which Beaufort County belongs, and at the time of trial, was at Washington attending his public duties as a member of Congress; but was not there, with any intention of changing his domicile from this state. The suit had been pending for several years, but Mr. Hines had never been summoned as a witness in it, (266) nor had any attempt been made by the plaintiff to obtain his deposition. The plaintiff offered to prove his hand- writing, and on such proof claimed to read the bill of sale; but the Court refused to allow it. and a verdict was given for the defendant. The plaintiff moved for a new trial, because the evidence was not received, and the Court (by consent of parties, and in order that the rule of evidence might be settled) overruled the motion, and gave judgment for the defendant; whereupon, there was an appeal to this Court. Badger, for the appellant.-The presence of the subscribing witness is required, merely to rebut the presumption which arises from his non- production, that the party is afraid to produce him; hence, when it is made apparent that the true reason of his non-production, is not the fear of his testimony, secondary evidence will be received. It is certain, that the hand- writing of a subscribing witness, who has permanently removed, may be received; now we affirm, that whether the removal be permanent or temporary, is of no moment; that the true enquiry is, whether at the time of the trial, the witness is absent beyond the jurisdiction of the Court, out of the reach of its process; if he be, secondary evidence is admissible. Thus, in the case of Prince v. Blackburn (2 East, 250), the subscribing witness to a deed was abroad, at the time of trial, the Court held, "that as the witness was out of the jurisdiction of the Court, so as not to be amenable to its process," evidence of his hand-writing was proper. The case leaves it uncertain whether the absence of the witness was temporary or permanent, but the Court seems to have considered it unimportant, for they take no notice of any distinction between the absence for a limited time, and a permanent residence abroad. So, in the case of Crosby v. Percy (1 Taunton, 364), a temporary absence of the subscribing witness is pre-(267)supposed, and all that the Court required to admit secondary evidence, was to be satisfied that an honest effort had been made to get the subscribing witness, that he was not designedly kept back. And in Ward v. Wells (1 Taunton, 461), where the absence seems to have been temporary, the Court appears to have decided the case on an enquiry whether the witness was out of reach of process. To the same point is Adam v. Kers (1 Bos. & Pul., 360). The same rule exists in several of the sister states. (5 Mass., 462; 11 Ibid, 309.) In this latter case, the witness resided in New-York. Parker, J., says, "the witness being absent and out of the Commonwealth," secondary evidence must be received, and he assigns no other reason for it. In South- Carolina, Oliphant v. Taggart (1 Bay, 355). So in North-Carolina, Allen v. Martin (1 Car Law Rep., 378), when it appeared that the witness lived in South Carolina; he was out of the reach of process, and secondary evidence was received. To this it may be added, that the rule for which we contend, in England, to be distinctly recognized, and not to admit of controversy: for Peake, in his Treatise on Evidence, states, in so many words, that if a subscribing witness be absent at the time of trial, "whether for permanent residence, or temporary purpose," proof of his handwriting will be received, and for this he cites Prince v. Blackburn, before referred to. We may hence conclude, that the understanding of the profession in England, as to the ground of decision in Prince v. Blackburn, supports the view which we have taken of the case. But it is said, that Mr. Hines was not summoned, nor was any attempt made to procure his deposition. He was not summoned, nor is the service of a subpoena in any case necessary to authorize the introduction of secondary evidence; but still less, if possible, is it here necessary, where the very ground on which a motion is (268) made to introduce the secondary evidence is, that the witness is not bound to obey a subpoena. Service or attempt to serve a subpoena, is often shown to the Court, but it is only to evince that a party has used due diligence. As to not taking his deposition, there is no law which requires that an attempt should be made to take it before proof of hand-writing can be received. If there was many of the cases in the books, on the admissibility of proof of hand-writing, where the residence of subscribing witness Was known, would have presented no difficulty, they would have been disposed of on that ground. But the case of Allen v. Martin, before cited, has settled the question here, for it is one of the points on which the case came up. But it may be said, that this case is to be settled by an act of 1792, relative to registration of bills of sale of slaves.* The act was not intended to alter any of the rules of evidence, but to prescribe the circumstances under which a party may be excused, both from the production of the subscribing witness, and proof of the hand-writing, and to declare when the probate and registration shall be taken as plenary proof. Suppose a subscribing witness be insane, the act does not in such case, say that the instrument may be read on probate and registration, yet surely the Court would permit it. The phrase "removed out of the state," can mean only such an absence as prevents the party from producing the witness. So in the case of a deposition de bene esse, (269) it is secondary evidence. Suppose that the witness is absent at the time of trial, but will return in ten days, the Court does not wait for the witness. Hogg, contra.—At the common law, a subscribing witness must be called, unless he be dead, out of the Court's jurisdiction, insane, infamous, interested, or, upon diligent search, not to be found; in which cases, his hand-writing may be proved. The act of 1792 has so far altered the common law, that in cases of death and removal (by which latter word is meant, a change of domicile, not a temporary absence) probate and registration may be received as proof of execution; and the act seems to me to settle the question. But if the case depends on tho common law authorities, there can no case be found, where a subscribing witness, absent for a limited time, the period of whose return was certain, and not distant, has been dispensed with. By a continuance of the cause, his examination viva voce might be had, before his departure his deposition might have been taken, and in either case, the appellee would have had the benefit of a cross-examination. The general rule is of importance, the exception is matter of convenience; that a party who is in no fault, but has used all due diligence to procure his witness, shall not lose the benefit of his deed. The cases of exceptions are all well arranged in a note to 1 East, 55, Day's edition. In Prince v. Blackburn, the return of the witness was uncertain; in our case, the return cf Mr. Hines at a definite time, is certain. In Ward v. Wells, enquiry had been made for a year, and witness could not be found; he was on a voyage to Spain, and his return was uncertain. The case justifies the belief that his absence was permanent. In (270) Sluby v. Champlin (4 Johns. Rep., 467), the witness had been long absent, and when last heard of was at Leghorn. In cases of witnesses being absent, and out of the jurisdiction of the Court, it has, on the one hand, been contended, that the witness should be domiciled abroad; and on the other, that it need only appear he was cut of the reach of process at the time of trial, to let in secondary evidence of his band- writing. The truth lies between the two extremes. If there is no certainty of the return of an absent witness within the Court's jurisdiction, proof of his hand-writing is received ex neceessitate. It is not easy to lay down an inflexible rule for all cases, but the Court will take care that the one party shall not lose his rights Under a written instrument, when a witness cannot be procured; and that the other party shall not lose his cross-examination where his adversary has it in his power to take a deposition, or continue his cause to get the witness. Thus in 18 Johns. Rep., 60, the proof of hand-writing was not admitted, when the deposition of the witness could be procured. Here, the testimony of Mr. Hines was completely within reach of the appellant; he could not have had a continuance for his absence, for he never summoned him to attend, nor did he attempt to take his deposition before he left the state. It would be strange, that the diligence of the appellant was not such as would entitle him to continue and yet was sufficient to let in secondary evidence. If the cause was continued, the appellee sustained a little delay, and possibly some costs; by admitting the secondary evidence, he loses the cross- examination, and is subjected to no small hazard of having a fraud practiced on him. He can neither prove the facts attending the delivery of the deed, nor, what is often all-important, the time of delivery. If the rule is to be relaxed to the extent that a party need not produce the subscribing witness, because it would (271) oblige him to continue, it had better be abrogated altogether. Gaston, on the same side.—The rule anciently was, that a deed must be proved by the subscribing witness, if living; if dead, proof of the fact and of his hand writing, was received. (Com. Dig. Evidence, B. 3; —10 Coke 93, a. 2 Atk. 48.) Necessity has, of late years, and since the American Revolution, induced a relaxation of the rule. The earliest innovation is the case of Coghlan v. Williamson (Doug. 93). The subscribing witness had gone to India five years before, and defendant had acknowledged the debt, but declared that plaintitf never could get the witness. Evidence of hand-writing was received ex necessitate. This was in 1779. In 1797, Lord Kenyan declared, that the relaxation, though very modern, had not extended beyond the case where a witness was domiciled abroad, or could not be heard of (7 Term R. 266); and thus far, the Courts have adopted it. (1 Law Rep., 375; 2 Hayw., 404.) But subsequent Judges have further relaxed the rule. They have never, however, gone farther than this, that even if a witness be not domiciled abroad, but is abroad, and every exertion has been made, but without success, to get his testimony; then the Courts admit secondary evidence. In Prince v. Blackburn, the witness left the country, before action was brought, he was never amenable to its process; and proof of his hand-writing was received on the same equitable principle on which the depositions of witnesses domiciled abroad had been received. In Adams v. Kers, the witness resided permanently in Jamaica, and had never been amenable to process after suit brought. So in the cases read from Taunton, 364 & 461, the relations of the old rule were introduced from necessity. The modern rule contended for, on the other side, does not seem to have been perfectly settled, even so late (272) as 26 Geo., 3 (1786-7), for in that year, a statute was passed as to bonds executed in the East Indies, and witnessed there, declaring that proof of the hand-writing of the subscribing witness, of the party to the deed, and of the residence of the witness in India, shall be sufficient proof of the bond. But the enquiry is, not what is the English rule, but what is ours; it is the same that Lord Kenyan held in his time. Any further relaxation here is unnecessary, and of course illegal; unnecessary, because depositions de bene esse may be taken in every instance, and the witness compelled to attend. But in England, no decision can be found, that where the witness resides there, is known, and with the knowledge of the party is about to be absent, and is not summoned, that if absent at the moment of trial, his testimony may be dispensed with. In Gordon v. Paine (Martin, 72), the witness was resident in the State, but at the time of trial was absent in New-York and sick, proof of his hand-writing was not received. See also 5 Cranch, 15 — 8 Johns. R., 121. Here the witness lived in the adjoining county, the cause had been pending for years. Plaintiff knew that the witness would be out of the State at the trial, and he made no effort of any sort to get his testimony. The true rule is to be found in our act of 1792; the exceptions to the general rule made by the act, are in cases of death or removal. This case comes not within the meaning of the word removal, it implies a permanent change of residence; it comes not within the equity or spirit of the law. Where there is a physical and legal power to compel testimony, secondary evidence is not admissible. This is the spirit. Taylor C. J.—The general rule, which requires the proof of a bond to be made by the subscribing witness, has undergone various relaxations, the first of which seems to have occurred in Coghlan v. Williamson, 1 Doug., (273) 93, which was certainly a strong case, since besides the impossibility of obtaining the attendance of the witness, there was the defendant's admission of the debt. The rule which now appears to be established in England is, that the secondary evidence is admissible, where the witness is out of the jurisdiction of the Court, so as not to be amenable to its process. I do not recollect any practice in this State which authorizes a proof of the hand- writing under a temporary absence of the witness, and without a change of domicile, which I think it would be dangerous to establish, on account of the abuses to which it might lead. For a subscribing witness who might alone be conversant of the corrupt consideration of a bond, might be sent over the line to suppress all proof except that of the execution. But where a man leaves the State in the exercise of a public duty, as in this case, as all presumption of collusion is thereby repelled, justice ought not to be delayed or interrupted by his absence. I think therefore, it may fairly be considered as coming within the reason of other admitted exceptions to the rule, and that there ought therefore to be a new trial. Hall, Judge.—If the defendant could not have dispensed with the testimony of the witness Hines, it would have been incumbent on him to have taken his deposition, because he could not procure his personal attendance. The witness being absent in the discharge of duties imposed upon him by law, so far resembled a witness whose place of residence was without the limits of the State; of course, his deposition might have been taken, if the party had thought proper to do so; but he was not obliged to do so, because it is a rule of evidence in our Courts, that the hand-writing of a documentary witness may be proved, provided he lives without the limits of the State. I therefore think, that the rule for granting a new trial should be made absolute. Henderson, J., concurring, Judgment reversed. Approved. Edwards v. Sullivan, 30 N. C., 302; Miller v. Hahn, 84 N. C., 226. ------------------ *Be it enacted, &c. That on all trials at law, where a written transfer or conveyance of a slave or slaves shall be introduced to support the title of either party, the due and fair execution of such writing shall be proved by a witness subscribing and attesting the execution of such writing; out if such witness shall be dead, or removed out of the State, then the probate and registration of such writing may be given in evidence. Additional Comments: North Carolina Reports, Volume 11 Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA. For December Term 1825 and June Term 1826 by Francis L Hawks (Vol. IV) Annotated by Walter Clark Richmond: James E Goode Printing Company, Printers 1897 File at: http://files.usgwarchives.net/nc/beaufort/court/selby1456gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 17.6 Kb