that the testator should actually see the witnesses sign the attestation. It is sufficient if he were in such a situation that he might see them attest his will. If on the evidence it appear that the testator was too weak to get out of bed, and it be doubtful whether the attestation was signed in the room in which he was, or in the next room, the door being open, it will be for the jury to say whether the will was attested, either in the same room, or in such a part of the next room that the testator might see them sign the attestation; in either of those cases the attestation is good. But if the jury should think that the attestation was signed by the witnesses at a part of the next room, where the testator could not see them, that is not a good attestation, notwithstanding the door between the two rooms was open, and the testator might hear what the witnesses said in the next room, if they spoke in the ordinary tone of voice. Tod v. The Earl of Winchelsea, Page 488

with figures that it is unintelligible, the original paper having been written near the time of the transaction. Jones v. Stroud, Page 196 4. Whether a witness called on behalf

of a plaintiff, to prove an agreement, who admits, on his cross-examination, that the signature to the agreement is his and not the plaintiff's, can be asked whether he signed it on behalf of the plaintiff and as his agent-Quære. Poplett v. Stockdale,

198

5. Assumpsit for mourning, against an executor, furnished to the widow and family of the defendant's testator. This not being a funeral expense that the executor could claim against the estate, a legatee is a competent witness for the executor, though it was objected that he was interested to prevent the estate being charged, out of which his legacy was to be paid. Johnson v. Baker, 207 6. In an action on a bill of exchange by the second indorsee, against the drawer; the first indorsee is a competent witness for the plaintiff. Hewitt v. Thompson, 372

7. If a witness is called, and refreshes his memory as to the numbers of bank notes by an entry in a book, the counsel of the opposite party may cross-examine as to the other parts of that entry. Loyd v. Freshfield,

325

8. If in assumpsit for work and labour, the defence be that A. B. was employed to do the work, and not the plaintiff, A. B. is a competent witness to prove this, although he is an uncertificated bankrupt, and his assignees have received the amount due for this very work, as done by him. Wilson v. Gallatly, 467 9. If the counsel for the defendant in cross-examination put a paper into the witness's hand, to refresh his memory, the opposite counsel has a right to look at it without being bound to read it in evidence; and

In an action for a false return of nulla bona to a fi. fa., if the plaintiff shew the debtor to be possessed of certain goods, it is no defence for the sheriff to shew a prior execution to an amount of greater value, if to that, execution the sheriff also returned nulla bona: nor, if the sheriff has the proceeds of the goods in his hands, is it any defence to shew that the fi. fa., on the return of which the action is brought, was delivered at the sheriff's office at a quarter past five o'clock on the day on which it is returnable. v. Crowder, (Esq.),

WRIT OF RIGHT.

Towne

355

for the trial, that one of the four knights is so ill, that he not only cannot then attend, but is not likely to be able to attend on a future day, the Court will order the sheriff to summon another knight to act in his stead; and it will not be necessary that any fresh selection of a grand assize should made by the knights in conseque of the alteration which has take place in their body. Ibid. 4. On the trial of a writ of right, though the demi-mark has been tendered, the tenant must begin. The demi-mark may be tendered either at the joining of the mise, or at the swearing of the grand assize; and if it has been done at the joining of the mise, it is too late at the time of trial for the cominant to take the objection... well,

5. An examined copy of Chancery by a person

✓. Bag

271

answer in

a party and it is

to the action is eviden not necessary to prod... the original, or prove the handriting of the party. Ibid.

WRITING, HAND. 1. If a person proves that he has never seen the defendant write, and has never corresponded with him, but has seen papers in the master's office, which the attorney of the party admitted to be of his handwriting, and the person has acted on these papers so admitted-This is not such a knowledge of the party's hand-writing, as will enable the person to prove a written document, alleged to be in his handwriting. Greaves v. Hunter, 477 2. But if he has received letters from

the party, and acted on them, that will be sufficient. Sharpe v. Gisburne,

21