S. Farnsworth, administrator of A. M. Bradbury, versus Joel Briggs, 6 N.H. 561

Richardson, C. J. It is made a question in this case, whether the copy of the record, in the register’s office, was competent evidence to prove the time,when administration was granted to the plaintiff. But upon this question there can be no doubt. The decisions of the Probate Court can be proved only by the record of its proceedings. 3, N. H. Rep. 309, The Judge of Probate v. Briggs. And the copy produced, in this case, is not only admissible in evidence, but is the best evidence that could be produced.

The letters of administration, which are only a copy of the record in the Probate Court, drawn up in a more formal manner, are certainly no better evidence. 8 East, 187, Elden v. Keddell; Buller’s N. P. 245—246; 1 Levintz, 25, Garrett v. Lister; 1 Starkie’s Ev. 247—249. The circumstance, that the copy was received as evidence, forms no ground for a new trial. But it is insisted, that the evidence offered was not sufficient to prove, that the defendant made the note. This objection seems to be well founded. Where there are ■subscribing witnesses to an instrument they must be called to prove it.

If the subscribing witnesses cannot be produced, the invariable practice has been, in this state, and in other places, to prove the hand writing of the ■witnesses. In some eases proof of the hand writing of him who signed the instrument has also been required. 1 Stark. Ev. 340—344; Greenleaf, 63 note; 8 Pickering, 143, Russell v. Coffin; 2 Chittty’s Rep. 196, Doe v. Johnson; 1 Moody and Malkin, 79, Page v. Mann; Ibid 176, Mitchell v. Johnson; 9 Bingham, 359, Morgan v. Morgan; 1 B. & P. 360, Adam v. Kers; 2 East, 250, Prince v. Blackburn; 11 Mass. Rep. 309.

If no person can be found to prove the hand writing of the witnesses, proof of the hand writing of the maker of the instrument may be sufficient. 3 Binney, 192, Clark v. Sanderson; 7 D. & E. 265; 5 ditto, 371. When it has been shown, that the subscribing witnesses are dead, proof of their hand writing, is, in general, sufficient. But, when they cannot be produced, because they are in a foreign country, or rendered incompetent by reason of a crime, or of an interest in the event of the cause, it is necessary to prove the hand writing of the party the instrument as well as of the subscribing witnesses.

Peake’s Ev. 70. 1 Starkie’s Ev. 340. And where a party to an instrument, subsequently to its execution, communicated to the subscribing witness an interest, it was held not to be competent to such party to prove the hand writing of such witness. 5 Bingham, 493, Hovill v. Stephenson. Parker, J. The rule, that when the testimony of the subscribing witness cannot be had the proper proof of its execution is by giving evidence of his hand writing, and that evidence of the hand writing of the obligor or maker, or of his admission of the signature, is insufficient, seems to have been repeatedly sanctioned.

There are numerous cases, besides those cited by the Chief Justice, in which it has been established or recognized. 1 Johns. Cas. 230, Mott v. Doughty; 4 Johns. Rep. 467, Sluby v. Champlin; 5 Cranch, 13, Cooke v. Woodrow; 5 Peters’ S. C. Rep. 319, 344, Lessee of Clark v. Courtney; 6 ditto, 616, Crane v. Lessee of Morris; 3 Camp. 283, Currie v. Child; 1 Esp. N. P. C. 2, Cooper v. Marsden; 2 East, 183, Cunliff v. Sefton; 1 Taunt. 364, Crosby v. Percy; 8 Johns. 121 (94 2d ed.) Mills v. Twist; 11 Johns. 64, Jackson v. Burton; 5 Cowen, 385, Jackson v. Gager; 9 Cowen, 140, 4 Wendell, 278, Jackson v.

Christman; 2 Dall. 116, Douglass' Lesse v. Sanderson. Courts, which have administered the rule as thus laid down, however, have not always been satisfied of its propriety. 3 Binney, 196, Clark v. Sanderson; 6 ditto, 45, Lessee of Hamilton v. Marsden; 1 Barn. & Ald, 19, Nelson v. Whittall; 5 Peters, 344. And it seems to me, that, in no one of the cases has any sufficient reason been given to justify it, upon principle.

Starkie 1 Ev. 330, says, “the law requires the testimony of the subscribing witness because the parties themselves, by selecting him as the witness, have mutually agreed to rest upon his testimony in proof of the execution of the instrument, and of the circumstances which then took place, and because lie knows those facki which are probably unknown to others.” i But in Hall v. Phelps, 2 Johns. 451, Sir.

Justice Spencer says, “the notion that the persons who attest an instrument are agreed upon to be the only witnesses to prove it, is not conformable to the truth of transactions of this kind, and to speak with all possible delicacy, is an absurdity.” The reason given by Mr. Justice Le Blanc, in Call v. Dunning, 4 East, 54, “ that a fact may be known to the subscribing witness not within the knowledge or recollection of the obligor,” will certainly not bear examination. The true reason is stated in several cases.

The testimony of the subscribing witness is the best, evidence the nature of the case admits of, and the law requires the best evidence. It is well known, that, in point of fact, there is often no agreement of the parties who shall subscribe. Any one present, or who is requested by either party, witnesses the instrument. Nor is he called as a witness to to prove the circumstances which took place, or “facts which are probably unknown to others” farther than the fact of execution.

He maybe examined to any such facts and circumstances, by either party, if he has knowledge of any, but he is called to prove the execution of the instrument. That is the matter to be proved, and if his testimony establishes this, it admits the instrument in evidence, if he has no knowledge of any other facts or circumstances. As lie must, or ought to have seen, the party sign, or at least have heard him acknowledge his signature, and as he may have knowledge of attendant circumstances, his is the best evidence, and of course to be produced if to be had.

If not to be had, the law allows a 'resort to the next best evidence. Next best evidence of what r Of course, of that matter to which the subscribing witness must have been called to testify, if his evidence could have been ■ procured — that is, the execution of the instrument by the party. The material evidence which the subscribing witness ■must have given, if examined, would have been, not merely that he signed as a witness, but that the party executed the instrument. The secondary evidence should be to the same point.

The position, that the signature of an attesting witness, when proved, is evidence of every thing upon the face of the instrument, (1 Stark. Ev. 340; 1 Phil. Ev. 362) isa fallacy, for instances have occurred where signatures have ■been put as signatures of subscribing witnesses, without such knowledge on the part of the individuals, so subscribing, as would establish the signature of the party. 2 Camp. 635, Fitzgerald v. Elsee, and Lemon v. Dean, in note; Peake’s N. P. C. 146, Grellier v. Neale; 3 Esp. 173, Ley v. Ballard, in note.

If the subscribing witness “denies the deed,” other witnesses may be eallerl to prove it. Doug. 216. If the witness, who attests, could not have given evidence at the time of attestation, from ignorance of the facts, interest, infamy, or other cause, the proper course is to give evidence of the hand writing of the party, not of the witness. 1 Phil. Ev. 363. So if no person can be found to prove the hand writing of the witness, evidence of the signature of the party is admitted. 3 Binn. 192; 1 Phil. Ev. 364.

The proof of the hand writing of the witness, is, at best, but indirect evidence of the signature of the party, and thus, it seems, that courts have refused to receive, in the first instance, direct evidence of the material fact, but take it on a failure to make out the indirect evidence.

The expediency, however, of attempting to establish a rule differing from such numerous decisions, may admit of donbt, and I therefore concur in the opinion, that when the testimony of the subscribing witness cannot be had, evidence of his hand writing is next to be given ; solely, however, upon the weight of authority, and with this qualification, that evidence of the hand writing of the witness alone can have- no greater effect than that of mere formal proof, upon which lo introduce the instrument in evidence, and that the slightest evidence against the genuineness of the signature of the witness, or party, must compel the party introducing the instrument to, prove also the hand writing of the maker, or obligor.

Justice requires that no greater effect should be given to the mere proof of the hand writing of the witness, and perhaps it may be best to require, in all cases, proof of the hand writing of the party and witness, unless it ⅛ shown that the testimony cannot be had. This has been, held to be the regular evidence in some instances. 7 D. & E. 266, Wallis v. Delancey, in note; 1 Bay. 255, Oliphant v. Taggart. Such proof must be required, where* by law, attesting witnesses are necessary io the validity of the instrument. 1 Phil. Ev. 383; 2 Bay. 187, Hopkins v. De Graffenreid; 5 Cowen, 221, Jackson v.

Luquere, 3 Burr. 1247, Wright v. Clymer; 11 Mass. Rep. 311, Homer v. Wallis. Mw trial granted 11 Wendell, 99, Mc Pherson v. Rathbone; ditto 110, 123, Pelletreau v. Jackson.