Hodnett v. Smith

The bill of sale was an important piece of evidence, and well calculated to exercise a strong influence over the jury. If no sufficient foundation was laid for its introduction, an error was committed by receiving it in evidence. Being *89an instrument under seal, there can be no question that plaintiff was bound to prove its execution by the subscribing witness, or to show by competent evidence that he could not be produced, or was incapable of being examined (Hollenback v. Fleming, 6 Hill, 303, and authorities therein cited), unless the change in the law, which allows parties to be witnesses, has altered the rule, or afforded a reason for dispensing with it. That such is not the case has been distinctly held by the supreme court and the court of common pleas (Jones v. Underwood, 28 Bard., 481 ; Story v. Lovett, 1 E. D. Smith, 158 ; see also King v. Smith, 21 Bard., 158). I can see no reason why this court should hold otherwise. Proof of due diligence, such as would govern a prudent man in a sincere search for the subscribing witness is, therefore, still necessary to let in secondary proof (Van Dyne v. Thayre, 19 Wend., 162).

Where the failure to produce the subscribing witness has been satisfactorily accounted for, the genuineness of the signature of such witness may be proven; and when it appears that this cannot be done, and not before, proof may be given of the handwriting of the party who executed the instrument (Wilson v. Betts, 4 Den., 201; McPherson v. Rathbone, 11 Wend., 96).

In the present case no objection was made upon the ground of the absence of proof as to the genuineness of the signature of the subscribing witness, and consequently it cannot be raised on appeal for the first time. But the objection that the absence of the witness had not been accounted for was distinctly taken. Upon examination of the case, I am unable to find any evidence tending to show that plaintiff used due diligence, or any diligence whatever, to procure the attendance of the subscribing witness. In fact, there is no evidence that plaintiff made or caused to be made, any effort in this direction. It does not appear that Leary was authorized or requested to look for such witness. He *90simply swears that he believes the witness went to Omaha, because a bookseller and a Mend of the witness had told him so, but does not show that these persons knew or were in position or likely to know the fact. Nor does he specify the time of the receipt of this in formation. No circumstance is stated from which either the fact or the time of the departure of the witness could be reasonably deduced. For all that appears the witness might have gone and returned at least one year before the trial. This is clearly insufficient.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellants to abide the event.

Monell, Ch. J., and McCuítít, J., concurred.

Ordered accordingly.