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the plaintiff to set it forth in the declaration, so that the bond produced in evidence may agree with the bond declared on. Hence, if a bond be dated abroad, the declaration must state the place of such date, and then the venue must be added for a place of trial. But where a promissory note was dated at Paris, and the declaration merely stated that it was made at London omitting the place of date, Lord Ellenborough held the omission to be immaterialk. In debt upon bond, the court would not permit money to be paid into court, but would refer it to the master to compute what was due for principal and interest : But see stat. 3 & 4 W. 4. c. 42. s. 21. ante p. 137.
Of the Pleadings :
1. General Issue, non est factum, and Evidence thereon–New Rules.
The general issue to an action of debt on bond, is non est factum ; because the action is grounded upon the specialty. But by R. G. H.T. 4 W. 4, in debt on specialty or covenant, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable. Under the operation of this rule, many grounds of defence, of which the defendant might heretofore have availed himself, by evidence upon non est factum, must now pleaded specially; as razure, interlineation, addition to, or other alteration of the deed in a material part; coverture or lunacy, at the time of the execution, or that the bond was delivered as an escrow, or that defendant was made to execute it when he was so drunk, that he did not know what he did. If the defendant crave oyer of the bond and condition, and does not set out them or either of them truly, and then pleads non est factum, the plaintiff ought to pray to have the bond and condition, or either, (as the case may be) inrolled, and then demurm, or sign judgment for want of a plea", or move to quash the pleao; for if the plaintiff omits to take the foregoing steps, and joins issue on the non est factum, the defen
k Houriet v. Morris, 3 Campb. 303. n Per Cur. Wallace v. Duchess of 1 Anon. E. 25 G. 3. B. R. MSS.
Cumberland, 4 T. R. 371. m Com. Dig. Pleader, P. 1. Ferguson o Ib.
v. Mackreth, 4 T. R. 371. n.
take advantage of the varianceP. But see stat. 9 G.4. c. 15. ante, p. 526. Upon the issue of non est factum, the plaintiff must prove the execution of the bond by the defendant. Proof that one, who called himself D., executed, is not sufficient, if the witness did not know it to be the defendantl. To prove the execution of a bond, the sealing and delivery must be proved. Proof of the sealing only is not sufficient. Hence, in a case' where the jury found that the defendant sealed the bond and cast it upon the table, and the plaintiff took it without any other delivery, or any other thing amounting to a delivery, the court were of opinion, that this was insufficient; observing, that it was not like the case which had then lately been adjudgeds, where the obligor had sealed the bond, and cast it upon the table, saying, “this will serve," which was holden a good delivery; because from the expressions used by the obligor, it appeared to be his intention that it should be his deed. If the obligor says to the obligee, “it is sufficient for you," or, “take it as my deed,” or the like words, it is a sufficient delivery. If a person deliver a writing sealed to the party to whom it is made, as an escrow, that is, to be his deed upon certain conditions, that is an absolute delivery of the deed, being made to the party himselfu. But a deed may be delivered to a stranger as an escrow.
If there is a subscribing witness to the bond who is living, and capable of being examined, such witness alone is competent to prove the execution; because he may know and be able to explain the circumstances of the transaction, of which a stranger may be ignorant (4); and for this reason it has been holden y, that a confession or acknowledgment of the party executing the bond will not dispense with this testimony. Even the admission of the obligor of the execution of a bond in an answer to a bill in chancery?, filed for the
p Gunter v. Smith, Peake's Ad. Cases, s 1 Inst. 36. a. edited by Peake, Jr. 1.
t Ib. 9 Memot v. Bates, H. 4 G. 2. Bull. u Ib. N. P. 171.
X Ib. r Chamberlain v. Stainton, Cro. Eliz. y Abbott v. Plumbe, Doug. 215.
122. 1 Leon. 140. Dyer in marg. 2 Call v. Dunning, 4 East, 53. 192, S. C.
(4) This rule is religiously adhered to, nor can it be dispensed with, even where the instrument is not the foundation of the action, but only given in evidence collaterally. See the opinion of Lord Alvanley, C. J. in Manners q. t. v. Postar, 4 Esp. N. P. C. 240.
express purpose of obtaining such admission, has been adjudged to be insufficient without evidence to account for the non-production of the subscribing witness (5). It is not necessary that the subscribing witness should actually see the party execute the bonda ; for if the witness be in an adjoining room, and the obligor, after the execution, brings the bond to the witness, and says that he has executed it, and desires the witness to subscribe his name as a witness, this is sufficient. If there be two or more subscribing witnesses, it will only be necessary to call one of them. If the subscribing witness be interested at the time of the execution, and also at the time of the trialc, he cannot be examined as a witness to prove the execution, nor will proof of his handwriting be sufficient. In this case proof of the hand-writing of the contracting party d must be adduced (6). If it can be proved, that the subscribing witness is dead or has become infamouse, or blindf; or is domiciled 8, or absent in a foreign country, and out of the jurisdiction of the courth, at the time of trial; or that intelligence cannot be obtained of him after reasonable inquiry has been made', proof of his hand-writing will in such cases be sufficient (7). If the subscribing witness
a Park v. Mears, 2 Bos. and Pul. 217. g Coghlan v. Williamson, Doug. 93. b Swire v. Bell, 5 T. R. 371.
h Prince v. Blackburne, 2 East's R. c See case put by Serjt. Hooper, in 250.
Goss v. Tracey, 1 P. Wms. 289. i Cunliffe v. Sefton, 2 East, 183. Crosd Godfrey v. Norris, Str. 34.
by v. Percy, 1 Taunt. 364. Wardell e Jones v. Mason, 2 Str. 833.
v. Fermor, 2 Campb. 282. S. P. f Per Holt, C. J. at Nisi Prius, Wood Parker v. Hoskins, 2 Taunt. 223.
v. Drury, 1 Ld. Raym. 734. and Burt v. Walker, 4 B. and A. 697. S. P. per Park, J. Devon Lent Ass. Doe d. Johnson v. Johnson, Leicester 1833, on the authority of the fore- Lent Ass. 1818, and B. R. Trin. T. going case; Pedler v. Paige, 1 M. 1818. 1 Phillips, 472. n. & Rob. 258.
(5) But in a case where the defendant's attorney had admitted the signature of the defendant, and of the subscribing witness to the bond, Lord Ellenborough ruled, that this must be taken as a presumptive admission of all the subscribing witness professed to attest, and would have been called to prove, and consequently, that it was not necessary to bring proof of delivery. Milward v. Temple, 1 Campb. 375.
(6) In Godfrey v. Norris, Str. 34. where the plaintiff was administrator de bonis non of the obligee, and the only surviving witness to the bond, Parker, C. J. permitted evidence of the hand-writing of the obligor to be given.
(7) In debt on bond, without defence. Willes, C. J. “ If both witnesses to the bond are dead, one would think the plaintiff ought
deny having seen the deed executed, the case stands as if there were no subscribing witness, and other evidence may be admitted
k Talbot v. Hodson, 7 Taunt. 251. See infra. n. (7.)
to prove the obligor's hand; but the established rule of evidence is otherwise, and it is sufficient for plaintiff to prove both the witnesses dead, and the hand of one of them ;" which the plaintiff did, and had a verdict. Tomlins v. Talbot, London sittings, C. B. M. 18 G. 2. MSS. 10 Leeds, 202. part of Serjt. Hill's collection in Lincoln's Inn library. So where a bond is attested by two witnesses, and one is dead, and the other beyond the reach of the process of the court, proof of the hand-writing of the witness that is dead is sufficient *. And the rule holds, even where the party executing the deed is a marksman. Mitchell v. Johnson, M. and Malk. 176.
It appeared from Wallis v. Delaney, 7 T. R. 266. n. that Lord Kenyon thought it necessary, in cases of this kind, that the handwriting of the obligor should be proved, as well as the hand-writing of the subscribing witness. But although this point was doubtful formerly, it appears to have been solemnly decided in the following
Debt on bond t: there was one witness to the bond who was dead; his hand-writing was proved, but not the hand-writing of the obligor. On Serjt. Kerby's objecting, that hand-writing of obligor was not proved, Lord Loughborough directed a nonsuit. Walker, Serjt. moved to set aside the nonsuit ; because signature is not necessary, and if subscribing witness had been dead, he need not have proved hand-writing of obligor. Cited 2 Rep. 5 Salk. 642. and Ford's MS. note of case before Eyre, C. J. where a deed was attested by two witnesses who were dead--the hand-writing of one of the witnesses only was proved, and not the hand-writing of the other witness, or of the party executing deed.--Kerby, Serjt. The obligor need not have signed, but having signed the bond, his hand-writing ought to have been proved; the ancient reason (3 Lev. 1.) for sealing is now at an end; the most satisfactory proof is the handwriting, instead of sealing—the witness's attestation is not the only evidence, and after his death there being no opportunity of cross-examining him as to the execution, the best evidence is that of the obligor's hand-writing-relied on the practice. Lord Loughborough thought the proof of obligor's hand-writing much the most satisfactory to court and jury. Gould, J. thought so too, and according to his memory it was the practice on the Western circuit. Nares, J. differed on principle and practice of Oxford circuit. Heath, J. concurred with Nares, J. on principle and practice said that it was good
* Adam v. Kerr, 1 Bos. and Pul. 360. But see 1 Cr. & M.511. post. p. 548 n.
† Gough v. Cecil, C. B. Trin. 24 G. 3. Serjt. Hill's MS. 21. p. 78. S. C. shortly reported in 1 Luders on Elections, p. 317.
By stat. 26 G. 3. c. 57. s. 38. deeds executed in the East Indies, and attested by witnesses there, are made evidence on proof of the hand-writing of the parties, and of the witnesses, and also that the witnesses are resident in the East Indies.
If the bond be thirty years old or upwards', it may be given in evidence without any proof of the execution (8); some account, however, ought to be given of it, where found, &c.m, in order to raise the presumption, that it was regularly executed (9). But if there be any blemish in the bond by I Bull N. P. 255.
Water-Works v. Cowper, 1 Esp. N. m Governor and Company of Chelsea P. C. 275.
primd facie evidence. Lord Loughborough, C. J. thought the practice ought to decide, and would take time to inquire of it-afterwards the court granted a new trial. N. In conversation a few days after, Gould J. expressed his dissatisfaction to Serjt. Kerby.
In addition to the preceding decision it may be observed, that Mr. J. Buller, in Adam v. Kerr, i Bos. and Pul. 360. held, “ that the hand-writing of the obligor need not be proved; that of the subscribing witness, when proved, is evidence of every thing on the face of the paper; which imports to be sealed by the party.
The same doctrine
may be inferred from the cases of Cunliffe v. Sefton, 2 East, 183. Prince v. Blackburn, 2 East, 250. Page v. Mann, 1 M. and Malk. 79. Kay v. Brookman, 1 M. and Malk. 286. S. P. per Best, C. J.
The doctrine contained in the foregoing cases was much discussed in Whitelocke v. Musgrove, in the Exchequer, in Easter T. 1833, i Cr. & M. 511, when it was solemnly determined, after consideration, that the naked evidence of the hand-writing of the subscribing witness, is not sufficient to fix a defendant in such case; there must also be reasonable evidence of the identity of the party sued with the party executing the instrument.
If the subscribing witness swears that he did not see the deed executed, then the execution may be proved by evidence of the handwriting of the party *. The same rule holds with respect to a promissory note t.
(8) This rule extends to other paper writings, as well as deeds, e. g. old receipts. Fry v. Wood, M. 11. G. 2 B. R. MSS.; Bertie v. Beaumont, 2 Price, 308; and Wynne v. Tyrwhitt, 4 B. and A. 376.
(9) It is worthy of remark, that in Rees v. Mansell, Hereford Sum. Ass. 1765, MSS. Perrot, Baron, held, that if a deed is read in evidence on account of its antiquity, yet if, on the other side, it is shewn, that one of the witnesses is alive, he must be produced ;
* Fitzgerald v. Elsee, 2 Camp. N. P. C. 635. Lawrence, J. + Lemon v. Dean, 2 Camp. N. P. C. 636. n. Le Blanc, J.