paid on the day, the bond is forfeited, and the penalty is the debt in law, for which judgment may be entered, which shall stand as a security for the growing arrears of the annuity. Where a place of date is mentioned in the bond2, it is incumbent on the plaintiff to set it forth in the declaration, so that the bond produced in evidence may agree with the bond declared on. Hence, if a bond be dated abroad, the declaration must state the place of such date, and then the venue must be added for a place of trial. In an action of debt upon bond, the court will not permit money to be paid into court, but will refer it to the master to compute what is due for principal and interest. Of the Pleadings: 1. General Issue, non est factum, and Evidence thereon. THE general issue to an action of debt on bond, is non est factum; because the action is grounded upon the specialty. If the defendant plead nil debet instead of non est factum, the plaintiff may take advantage of it upon general demurrer. Upon the issue of non est factum, the plaintiff must prove the execution of the bond by the defendant. Proof that one, who called himself D., executed, is not sufficient, if the witness did not know it to be the defendant. To prove the execution of a bond, the sealing and delivery must be proved. Proof of the sealing only is not sufficient. Hence in a cased where the jury found, that the defendant sealed the bond and cast it upon the table, and the plaintiff took it without any other delivery, or any other thing amounting to a delivery, the court were of opinion, that this was insufficient; observing, that it was not like the case which had then lately been adjudged, where the obligor had sealed the bond, and cast it upon the table, saying "this will serve," which was holden a good delivery; because from the expressions used by the obligor, it appeared to be his intention that it should be his deed. If the obligor says to the obligee, "it is suffi P 171. z Robert v. Harnage, Ld. Raym. 1043. c Memot v. Bates, H. 4 G. 2. Bull. N. Salk. 659. S. C. 1 Inst. 261. b. See also Dutch W. I. Company v. Van Moses, 1 Str. 612. a Anon. E. 25 G. 3. B. R, MSS. b Anon. 2 Wils. 10. d Chamberlain v. Stainton, Cro Eliz. 122. 1 Leon. 140. Dyer in marg. 192. S. C. e 1 lust. 36. a. cient for you," or" take it as my deed," or the like words, it is a sufficient deliveryf. If a person deliver a writing sealed to the party to whom it is made, as an escrow, that is, to be his deed upon certain conditions, that is an absolute delivery of the deed, being made to the party himself. But a deed may be delivered to a stranger as an escrow. If there is a subscribing witness to the bond who is living, and capable of being examined, such witness alone is competent to prove the execution; because he may know and be able to explain the circumstances of the transaction, of which a stranger may be ignorant (4); and for this reason it has been holden', that a confession or acknowledgment of the party executing the bond will not dispense with this testimony. Even the admission of the obligor of the execution of a bond in an answer to a bill in chancery*, filed for the express purpose of obtaining such admission, has been adjudged to be insufficient without evidence to account for the non-production of the subscribing witness (5). It is not necessary that the subscribing witness should actually see the party execute the bond', for if the witness be in an adjoining room, and the obligor, after the execution, brings the bond to the witness, and says that he has executed it, and desires the witness to subscribe his name as a witness, this is sufficient. If there be two or more subscribing witnesses, it will only be necessary to call one of them. If the subscribing witness be interested at the time of the execution, and also at the time of the trial, he cannot be examined as a witness to prove the execution, nor will proof of his hand-writing be sufficient. In this case proof of the f 1 Inst. 36. a. g Ib. h Ib. i Abbott v. Plumbe, Doug. 215. k Call v. Dunning, 4 East, 53. 1 Park v. Mears, 2 Bos. & Pul. 217. m Swire v. Bell, 5 T. R.37 1. (4) This rule is religiously adhered to, nor can it be dispensed with, even where the instrument is not the foundation of the action, but only given in evidence collaterally. See the opinion of Ld. Alvanley C. J. in Manners q. t. v. Postan, 4 Esp. N. P. C. 240. (5) But in a case where the defendant's attorney had admitted the signature of the defendant, and of the subscribing witness to the bond, Lord Ellenborough ruled, that this must be taken as a presumptive admission of all the subscribing witness professed to attest, and would have been called to prove, and consequently, that it was not necessary to bring proof of delivery. Milward v. Temple, 1 Camp. N. P. C. 375. hand-writing of the contracting party" must be adduced (6). If it can be proved, that the subscribing witness is dead or has become infamous°, or is domiciled?, or absent in a foreign country, and out of the jurisdiction of the court, at the time of trial; or that intelligence cannot be obtained of him after reasonable inquiry has been made; proof of his hand-writing will in such cases be sufficient (7). n Godfrey v. Norris, Str. 34. o Jones v. Mason, 2 Str. 833. p Coghlan v. Williamson, Doug. 93. q Prince v. Blackburne, 2 East's R. 250. r Cunliffe v. Sefton, 2 East, 183. Crosby v. Percy, 1 Taunt. 364. Wardell v. Fermior, 2 Camp. N. P. C. 282. S. P. Parker v. Hoskins, 2 Taunt. 223. (6) In Godfrey v. Norris, Str. 34. where the plaintiff was administrator de bonis non of the obligee, and the only surviving witness to the bond, Parker C. J. permitted evidence of the hand-writing of the obligor to be given. (7) So where a bond is attested by two witnesses and one is dead, and the other beyond the reach of the process of the court, proof of the hand-writing of the witness that is dead is sufficient*. It appears from Wallis v. Delancey, 7 T. R. 266. n. that Ld. Kenyon thought it necessary in cases of this kind, that the handwriting of the obligor should be proved as well as the hand-writing of the subscribing witness.-But although this point was doubtful formerly, it appears to have been solemnly decided in the following case. Debt on bondt: there was one witness to the bond who was dead, his hand-writing was proved, but not the hand-writing of the obligor. On Serjt. Kerby's objecting, that hand-writing of obligor was not proved, Ld. Loughborough directed a non-suit. Walker Serjt. moved to set aside the non-suit; because signature is not necessary, and if subscribing witness had been dead, he need not have proved hand-writing of obligor. Cited 2 Rep. 5. Salk. 462. and Ford's MSS. note of case before Eyre C. J. where a deed was attested by two witnesses who were dead-the hand-writing of one of the witnesses only was proved, and not the hand-writing of the other witness or of the party executing deed. Kerby Serjt. The obligor need not have signed, but having signed the bond, his hand-writing ought to have been proved; the antient reason (3 Lev. 1.) for sealing is now at an end, the most satisfactory proof is the hand-writing instead of sealing-the witness's attestation is not the only evidence, and after his death there being no opportunity of cross-examining him as to the execution, best evidence is that of obligor's hand-writing-relied on the practice. Ld. Loughborough Adam v. Kerr, 1 Bos. & Pul. 360. + Gough v. Cecil, C. B. Trin. 24 G. 3. Serjt. Hill's MS. 21. p. 73. By stat. 26 G. 3. c. 57. s. 38. deeds executed in the East Indies, and attested by witnesses there, are made evidence on proof of the hand-writing of the parties, and of the witnesses, and also that the witnesses are resident in the East Indies. If the bond be 30 years old or upwards, it may be given in evidence without any proof of the execution (8); some account, however, ought to be given of it, where found, &c. in order to raise the presumption, that it was regularly executed (9). But if there be any blemish in the bond by razure Water Works v. Cowper, 1 Esp. N. P. C. 275. s Bull. N. P. 255. t Governor and Company of Chelsea thought the proof of obligor's hand-writing much the most satisfactory to court and jury. Gould J. thought so too, and according to his memory it was the practice on Western circuit. Nares J. differed on principle and practice of Oxford circuit. Heath J. concurred with Nares J. on principle and practice said that it was good prima facie evidence. Ld. Loughborough C. J. thought the practice ought to decide, and would take time to inquire of itafterwards the court granted a new trial. N. In conversation a few days after, Gould J. expressed his dissatisfaction to Serjt. Kerby. In addition to the preceding decision it may be observed, that Mr. J. Buller in Adam v. Kerr, 1 Bos. & Pull. 361. held, "that the hand-writing of the obligor need not be proved; that of the subscribing witness, when proved, is evidence of every thing ou the face of the paper; which imports to be sealed by the party." The same doctrine may be inferred from the cases of Cunliffe v. Sefton, 2 East, 183. and Prince v. Blackburn, 2 East, 250. If the subscribing witness swears that he did not see the deed executed, then the execution may be proved by evidence of the hand-writing of the party*. The same rule holds with respect to a promissory notet. (8) This rule extends to other paper writings, as well as deeds, e. g. old receipts. Fry v. Wood, M. 11 G. 2. B. R. MSS. (9) It is worthy of remark, that in Rees v. Mansell, Hereford Sum. Ass. 1765, MSS. Perrot, Baron, held, that if a deed is read in evidence on account of its antiquity, yet if on the other side it is shewn, that one of the witnesses is alive, he must be produced; or the deed must be rejected. And he said a deed being produced in B. R. and going to be read, it appeared that Sir J. Jekyll was a subscribing witness; upon which the court said, they knew he was alive, and if he did not come to prove it, plaintiff must be non-suit, It was mentioned to have been said by Yates J. on a former cir * Fitzgerald v. Elsee, 2 Camp. N. P. C. 635. Lawrence J. or interlineation, the execution ought to be proved, although the bond be above 30 years old, by the subscribing witness, if living, and if he is dead, by proving his hand-writing, in order to encounter the presumption arising from the razure, &c. The defendant, on the general issue of non est factum", may give in evidence any thing which proves the deed to be void at the time of pleading; as razure, interlineation, addition to, or other alteration of the deed in a material point by the obligee, or even by a stranger without the privity of the obligee. In like manner the defendant, on non est factum, may give in evidence coverture or lunacy, at the time of execution; or that the bond was given to a feme covert, and her husband disagreed to it; or that the bond was delivered as an escrow; or that he was made to execute it when he was so drunk, that he did not know what he did. But if the deed is voidable only, as by reason of infancy or duress, in these, and the like cases, the obligee cannot plead non est factum; for it is his deed at the time of action brought, and must be avoided by special pleading. So if the bond is voidable by statute, that must be pleaded specially. In the case of a joint bond, if one obligor only be sued, he must plead the matter in abatement; for he cannot take advantage of it in evidence on the general issue non est factum, although it appear upon the declaration that there are other obligorse; nor can he demur upon oyerf. So where the bond is executed by three obligors, and two only are sued. But where it appears on the record, the objection may be taken in arrest of judgment". cuit, that, for the sake of practice, the witness should not be admitted to prove an old deed, even if he attended for that purpose; but Perrot B. retained his opinion, and said, that an old deed is adwitted only on a presumption, that the witnesses are dead; but when the contrary is made to appear, they must be called. |