case, the testator was sick in bed, and the witnesses withdrew into a gallery, and there subscribed it, between which gallery and the bed-chamber, (where the testator lay,) there was a lobby with glass doors, and part of the glass was broken (6); in another case, the testator lay in bed in *one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that and the door of the testator's room were open (1); in a third case, the testatrix sat in her carriage opposite the window of her attorney's office, in which office the witnesses subscribed their names (2): in all these cases, (and in others, which might be mentioned to the same effect, differing only in their peculiar circumstances,) the execution was held to be sufficient, the material fact being proved, that the testator might have seen the attestation, if he had chosen to look. If one of the subscribing witnesses can prove the execution, (as, that the testator signed in the presence of himself and two other witnesses, or that he acknowledged his signing to each of them, and that each of the witnesses subscribed in his presence,) this will be a sufficient proof of the will without calling the others. But if the witness, who is called, can only prove his own share in the transaction, as must happen, where the testator acknowledged his signing to the witnesses separately, the other witnesses ought in that case to be called. If they are dead, or insane, their hand-writing, and the hand-writing of the testator ought to be proved; it will then be a question for the jury, whether under the circumstances of the case it is probable, that all the formalities of the statute were regularly observed (3). The clause of attestation generally expresses, that the witnesses subscribed in the presence of (6) Sir G. Sheers's case, cited Carth. 81. (1) Davy and another v. Smith, 3 Salk. 395. (2) Casson v. Dade, 1 Brown Ch. C. 99. See also Doe dem. Wright and others v. Manifold, 1 Maule & (3) Hands v. James, 2 Comyns' * 383 * 384 the testator; but such a statement is not absolutely neces sary; and though it is entirely omitted, the omission will not conclude the jury from finding that the will was so subscribed. In the case of Croft v. Pawlet (3), the attestation. *was, that the will had been signed, sealed, published, and declared as his last will, in the presence of the subscribing witnesses; the witnesses being dead, and their signatures proved in the common way, it was objected, that this was not an execution according to the statute of frauds; for the signatures of the witnesses could only stand as to the facts to which they had subscribed, and signing in the presence of the testator was not one; but the Court were of opinion, that this was a matter of evidence to be left to the jury, and they gave a verdict in favour of the will. If a subscribing witness is abroad, who ought to be called if he could be produced, his hand-writing may be proved in the case of a will, as in cases on the execution of a deed (a). And the rule appears to be the same in courts of equity. Thus, where a question arose, whether it was necessary to send out a commission to examine one of the witnesses, who was in Jamaica, Lord Alvanley, then Master of the Rolls, held that it was not necessary to have his examination, but that the case was the same as if the witness were dead (1): the heir at law, he observed, did not make a point of it, but submitted it to the court; and he cited a case, where it was thought not only unnecessary, but very dangerous to send the will abroad. And in another case, where it was objected that one of the witnesses was abroad, Lord Chancellor Thurlow said, he doubted whether the rule had ever been laid down so largely, as that the will could not be proved without (3) Hands v. James, 2 Comyns' Rep. 530. Croft v. Pawlett, 2 Stra. 1109. Brice v. Smith, Willes' Rep. 1. S. P. (1) Ld. Carrington v. Payne, 5 Ves. jun. 411. (a) Vide Hopkins v. De Graffenreid, 2 Bay 187. examining all the witnesses, although that had been the practice (2). If a subscribing witness should deny the execution of the will, he may be contradicted, as to that fact, by another subscribing witness; and even if they all swear. that the will was not duly executed, the devisee would be *allowed to go into circumstantial evidence to prove the due execution (1). If one of the subscribing witnesses impeach the validity of the will, on the ground of fraud, and accuse other witnesses, who are dead, of being accomplices in the fraud, the devisee may give evidence of their general good character (2). When the subscribing witnesses are dead, and no proof of their hand-writing can be obtained, as must frequently happen in the case of old wills, it will be sufficient to prove the signature of the testator alone. In a case (3), where the hand-writing of two subscribing witnesses was proved, and no account could be given of the third, the will being above thirty years old and the testator having been dead for twenty years, an objection was made to the proof of the will; but the Master of the Rolls said, he could not see any distinction in this respect between a will and a deed, except that the former, not having effect till the death, wants a kind of authentication, which the other has; that is, from the nature of the subject; but in this case, he added, I think the proof sufficient; for in a late case in the (2) Powell v. Cleaver, 2 Brown, Ch. C. 504. See Grayson v. Atkinson, 2 Ves. 460. (1) Austin v, Willes, Bull. N. P. 264. Pike v. Badmering, cited 2 Stra. 1096. Lowe v. Joliffe, 1 Black, (2) Vide supra, p. 213. * In Calthorpe v. Gough and others, (4 T. R. 707. n. (a), 709. n. (†), a will thirty years old was not proved by witnesses, and it was said at the bar, that proof was not necessary on account of the age of the will; and in support of this a case of Mackery v. Newbolt was cited, in which Sir Lloyd Kenyon, then Master of the Rolls, decided, that a will above thirty years old should be read without proof, although the testator had died very recently. That point, however, was not decided in the case of Calthorpe v: Gough, because the plaintiff, the heir at law, admitted the will, and claimed under it. * 385 court of King's Bench, Cunliffe v. Sefton (4), an in of the same kind was held sufficient. The Master Rolls therefore held, that the execution of the will ha sufficiently proved (a). * 386 *CHAP. IX. Of stamping, as a Requisite of Written Instrument A WRITTEN instrument, which requires a stamp, canne (4) Vid. sup. p. 362. T. R. 452. Hodges v. Drake (1) R. v. St. Paul's, Bedford, 6 1 New Rep. 271. (a) An ancient will, with thirty years possession, in conform to the provisions of it, since the death of the testator, like an cient deed, proves itself: the period must be computed from death of the testator, not from the date of the will. Jackso Burhans v. Blanshan, 3 Johns. Rep. 292. Shaller & another Brand, 6 Binney 435. A will upwards of 80 years old, was mitted in evidence without proof of execution, though actual session had not accompanied it, the premises having, until 30 y after the date of the will, never been in the actual possession any one, when an adverse possession commenced; there be however, circumstances shown to raise a presumption of the ex ence and genuineness of the will. Jackson d. Lewis and oth v. Laroway, 3 Johns. Cas. 283. Vide ante, 371. n. is the best evidence of the nature of the occupation (2). But it may happen, in a variety of cases, that the transaction is capable of being proved by other evidence besides the written instrument; and the objection arising from the stamp acts may be avoided by resorting to that other species of proof. Thus, although a receipt for the payment of a bill, on unstamped paper is not admissible in evidence, yet the fact of payment may be proved by a witness who saw the money paid; and even such an unstamped receipt may be shown to the witness as a memorandum to refresh his memory (3). So in an action on a promissory note, though the plaintiff cannot give the note in evidence; unless it is duly stamped, yet he will not be precluded from recovering on one of the general counts of the declaration, if he can prove an admission of the original debt, or give other evidence of a consideration received by the defendant (4). And so, when a party to *the suit admits on the record that, which, if not admitted, the other party must regularly prove, it cannot be necessary to produce that evidence, which would otherwise be required. As, where an action is brought upon an agreement, which ought to be stamped, and the form of the pleading is such as to make it unnecessary at the trial to produce the instrument, (as, if it is admitted on the record, and the trial is upon issues collateral to the existence of the agreement,) a court of law will not examine whether the instrument is legally available with reference to the stamp acts (1). So, where a plaintiff filed a bill in Chancery for the specific performance of an agreement contained in a correspondence between him and the defendant, and the answer of the defendant admitted the letters, insisting only, that they did not amount to an agreement, the Court held that such an admission dispensed with (2) Brewer v. Palmer, 3 Esp. N. P. C. 213. Doe dem. St. John v. Hore, 2 Esp. N. P. C. 724. (3) Rambert v. Cohen, 4 Esp. N. P. C. 213. Jacob v. Lindsay, 1 East 460. (4) Farr v. Price, 1 East 57. Alves v. Hodgson, 7 T. R. 243. (1) Per Ld. Eldon, Ch., 11 Ves. 596. 387 |