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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 trial, 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 must be adduced (6). If it can be proved, that the subscribing witness is dead or has become infamous, or blind; or is domiciled &, or absent in a foreign country, and out of the jurisdiction of the court, at the time of trial; or that intelligence cannot be obtained of him after reasonable inquiry has been made 1, 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. 250.

c See case put by Serjt. Hooper, in Goss v. Tracey, 1 P. Wms. 289.

d Godfrey v. Norris, Str. 34. e Jones v. Mason, 2 Str. 833.

f Per Holt, C. J. at Nisi Prius, Wood v. Drury, 1 Ld. Raym. 734. and S. P. per Park, J. Devon Lent Ass. 1833, on the authority of the foregoing case; Pedler v. Paige, 1 M. & Rob. 258.

i Cunliffe v. Sefton, 2 East, 183. Crosby v. Percy, 1 Taunt. 364. Wardell v. Fermor, 2 Campb. 282. S. P. Parker v. Hoskins, 2 Taunt. 223. Burt v. Walker, 4 B. and A. 697. Doe d. Johnson v. Johnson, Leicester Lent Ass. 1818, and B. R. Trin. T. 1818. 1 Phillips, 472. n.

(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.

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 bondt: 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

1 Bull N. P. 255.

Water-Works v. Cowper, 1 Esp. N.

m Governor and Company of Chelsea P. C. 275.

prima 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, 1 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, 1 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 †.

(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.

razure or interlineation, the execution ought to be proved, although the bond be above thirty years old, by the subscribing witness, if living, and if he is dead, by proving his hand-writing, in order to encounter the presumption arising from the razure, &c.

In the case of a joint bond, if one obligor only be sued, he must plead the matter in abatement", for he cannot take advantage of it in evidence on the general issue non est factum, although it appear upon the declaration that there are other obligors P; nor can he demur upon oyer. So where the bond is executed by three obligors, and two only are sued'. [See the new provision as to pleas in abatement under stat. 3 & 4 W. 4. c. 42. s. 8. ante, p. 467. n.] But where it appears on the record, the objection may be taken in arrest of judgments.


2. Accord and Satisfaction.

appears from some of the books t, that to debt on bond an accord executed before the day of payment may be pleaded. I am not, however, aware of any case, in which this point has been expressly determined. If such plea can be pleaded, the following rules ought to be attended to; first, that the thing given in satisfaction be of some value in contemplation of law "; hence, a release of an equity of redemption is not

n Watts v. Goodman, Ld. Raym. 1460. o Whelpdale's case, 5 Rep. 119. a. Stead v. Moon, Cro. Jac. 152.

p South v. Tanner, 2 Taunt. 254. q Gilbert v. Bath, Str. 503.

r South v. Tanner, 2 Taunt. 254. Gaul

ton v. Challiner and Wilkinson, 1 Wms. Saund. 291. e. n.

s Horner v. Moor, B. R. M. 24 Geo. 2. cited by Aston, J. 5 Burr. 2614.

t Anon. Cro. Eliz. 46. cited in Com. Dig. Accord, (A. 1.)

u Preston v. Christmas, 2 Wils. 86.

or the deed must be rejected. And he said, a deed being produced in B. R. and going to be read, it appeared that Sir J. Jekyll was a subscribing witness; upon which the court said, they knew he was alive, and if he did not come to prove it, plaintiff must be nonsuited. It was mentioned to have been said by Yates, J. on a former circuit, that, for the sake of practice, the witness should not be admitted to prove an old deed, even if he attended for that purpose; but Perrot, B. retained his opinion, and said, that an old deed is admitted, only on a presumption that the witnesses are dead; but when the contrary is made to appear, they must be called. Sed quæ. And see Doe d. Oldham and Wife v. Wolley, 8 B. and C. 24 contra.

sufficient: secondly, if the debt arises by the performance or breach of the condition, and not by virtue of the bond, the accord and satisfaction must be pleaded in discharge of the condition, and not of the bond; lastly, if the debt arises upon an obligation without a condition Y, satisfaction by deed only can be pleaded; for the bond itself cannot be discharged without specialty.

Accord and payment of part before the day, with a promise to pay the residue at a future day, which promise the obligee accepted in full satisfaction of the debt, is not a good plea; because the promise to pay is executory.

Although one bond cannot be pleaded in satisfaction of another, yet payment of a less sum before the day in full satisfaction, and acceptance thereof in full satisfaction, may be pleaded in bar to debt on bond; because parcel of the debt, before the day, may be more beneficial to the obligee than the whole, at the day, and the value of the satisfaction is not material. But care must be taken in this case to plead the payment of part to have been made in full satisfaction; for if the plea states the payment of part generally, it will be bad.

3. Duress.

To debt on bond the defendant may plead, that it was obtained by duress of imprisonment (10). This plea admits the deed, and the proof of the issue lies on the defendant. If the defendant can prove that he was compelled to execute the bond, when he was under an arrest, without legal process, or by the process, or warrant of a person not having legal authority, it is sufficient. So if the arrest was by warrant from a justice of the peace, on a charge of felony, where there had not been any felony committed; or if the defendant having been arrested under legal process, was forced by tortious usage in prison, it will be construed a duress. The duress

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(10) See the form of this plea in the Clerk's Assistant, 77.

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