Edgar v. Brown , 15 S.C.L. 91 ( 1827 )

Curia, per

Johnson.

The Bond on which this action' was brought Was executed in the state of Delaware, where the witnesses are supposed to have resided, and I am' strongly inclined to the conclusion that the evidence was admissible on the principles of the common law, as the best which- the nature of th.e cáse admitted of,-and Which wás in the power of the- plaintiff to produce; but the act of 1802, 1 Brev.- 2Í9* par.- IS, supercedes the necessity of investigating the principle.- That act protides that “ the absence of a witness to any bond or note shall not be deemed a good cáuse by any court Of justice for postponing a trial respecting the same; but that the signature of such bond or note may be proved by other testimony, unless the defendant at the time of filing his or her plea shall swear or affirm, according to the form of his religious profession,, that the signature of the bond or note in suit is not his or hers,5’ &c„

That the object of the act was to dispense with the strict common law mode of proof and to substitute a greater facility in its place, and that the substitute proposed was proof of the signature of the obligor, is I think* Very apparent from the phraseology of the act itself. And such has been the universally received construction and practice upon it. For when the signature of the obligor of a bond or-the maker of a note is generally well knoWn and the proof of it conveniently practicable, it is rather a rare occurrence to summon the subscribing witnesses. — - A contrary construction so far from furnishing the facilities contemplated by the act would create additional embarrassments by making the proof of the handwriting of! tile witnesses also necessary, which although it might occasionally be practicable, would generally be more inconvenient than to procure his attendance.

The case of Plunkett vs. Bowman, 2 M’Cord 144, cited in support of the motion, does not conflict with this conclusion. The argument of the court in that case proceeds on the common law rifle, and it is obvious that the provisions of this act were entirely overlooked.

New Trial Refused.