Shepherd Co. v. Goss

Appeal. — Case on a note, to which there were two subscribing witnesses. The proof is not sufficient, agreeably to the practice which had hitherto prevailed in the State. Proof by one living witness would be sufficient. In this case it does not appear but that the other witness is living, and, if so, his testimony ought to be had. Some account of this witness ought to be given; that he is dead, that inquiry in the neighborhood of his residence has been made after him without effect, or that he has removed to some foreign nation. If he resides in another State, his testimony ought to be had, such having been the uniform course of decisions here. We are, however, aware that the rules of evidence respecting proof by subscribing witnesses have been much relaxed by modern decisions in England as well as several of the States.¹ Nonsuit.

DICKINSON, on the argument day, moved to set the nonsuit aside, stating that he was misled by the modern authorities referred to by the Court. He did not know the law was settled as the Court had stated; he hoped the Court would admit an investigation by granting a new trial.

¹ See 2 East, 250; 4 Johns. 461; Camp. 412; Taunt. 364.

Let the nonsuit be set aside, and a new trial granted, on the payment of the costs of this term.