others V. bench, preparatory to a final hearing. Nor was it to be presumed, that suitors would be long under the inconvenience Bowman et al. of a defective equity jurisdiction, arising from the vacancies on the bench. But, in the mean time, until the vacancies were supplied, and other judges appointed, the remaining chancellor still in office was fully authorized to go on, and fulfil all the duties assigned to any one chancellor, till others were appointed. That the present was a case preparatory to a hearing. It was a proceeding to compel a defendant to put in his answer to a bill, and came expressly within the powers given to each of the equity judges, who best knew their own powers and authorities, in cases within their own jurisdiction. That the present remaining chancellor Rutledge, was eminent both for his legal and equitable knowledge, and ranked high in the estimation of his country, who had elevated him to so important a trust, and they had no doubt, therefore, that he would do what was right and proper on the occasion. To him, therefore, they thought it their duty to refer the present case. That under the habeas corpus act they had no authority to liberate men committed for contempts. Prisoners, under such circumstances, were expressly excluded from the benefit of that act. The motion for bail was discharged and defendant remanded to the custody of the sheriff. N. B. At the next meeting of the legislature, after the above determination, two chancellors were elected to fill up the vacancies on the equity bench; so that, probably a case like the above, may never happen again. Note further. Since the determination of the above cause, and the filling up the vacancies in the equity bench, an act of the legislature has authorized the appointment of two additional chancellors, any one of whom is competent to hear and determine a cause, and to make a decree, with liberty to either party to appeal to a court established for that purpose. . FERDINAND HOPKINS against ALLAN DE GRAFFENREID, TRESPASS to try title to lands. Pinckney District, 1798. Where two witnesses to a and the third out of the In support of the plaintiff's title, a grant was first produced to James Moore, for 350 acres of land, on Sandy river, will are dead, dated 4th November, 1763. Two surveyors, to wit, Moses Hill and Joseph Gaskins, were then called to prove the identity of the land, and that it was in the possession of the defendant, and that their resurvey corresponded with the original plat annexed to the grant. state, proof of writings by any one credible witness, with the proof of testator's hand-writing, their hand proof to estaBlish the will. So proof of The last will and testament of James Moore, the original is sufficient grantee, was next produced, and as two of the witnesses were dead, and the other out of the state, a witness, John Pratt, was called to prove all their hand-writings. Mr. Nott, of counsel for defendant, here objected to the swearing of this witness, to prove the hand-writings of all the witnesses to the will, insisting that there ought to be a separate and distinct witness to prove the signature of each witness to the will, otherwise it would not come up to the requisites of the statute of frauds. But this objection was overruled without argument, by BAY, J. who presided on the trial. Mr. Pratt then proved the hand-writings of each of the three witnesses to the will; that two of them were dead, and the other resided in Georgia, namely, Geo. Nunn. the hand-wri tings of the witnesses to a bargain and sale of lands, who are dead, or out of the state, with the proof of the hand-writing of one of the grantors, where the other grantor or party to such bargain and sale is not accustomed to write her transact business, ought, under pecu name, or to stances, to be submitted to a jury, as presumptive evi The deposition of Geo. Nunn, taken on interrogatories, liar circumwas next produced, in which he proved the execution of the will by the testator, and the attestation of it by all the witnesses, and that the testator was of sound mind and memory when it was executed. The will was then read; it bore date the 15th January, 1779. In this will the testator gave his wife Dorothy a life dence that such grantor had executed the deed also. Non suit set aside for refu sing to let a cause go to the jury, for want of the proof of the hand-writing of one of the grantors, under the above circumstances. Hopkins V. De Graffenreid. estate in the land in dispute, and the reversion in fee to his son Thomas Moore. The next link in the chain of titles produced, was a bargain and sale from Thomas Moore the son, and Dorothy the widow of fames Moore, the testator, of the land in dispute, to David Hopkins, the father of the plaintiff in this action. The witnesses to this deed, it was stated, were dead or out of the state; but in order to supply the defect of this testimony, several witnesses were called. Hugh Thomas proved the hand-writing of one of the witnesses to the deed, and that he was dead. William Jenkins proved the hand-writing of the other witness to the deed, and that he was out of the state. Another witness proved the hand-writing of Thomas Moore. The last and only remaining part of the proof of this bargain and sale to be established, was the hand-writing of old Dorothy Moore, the widow, who had the life estate in the land. Two witnesses were called for that purpose, Anderson Thomas and John Embre, (the latter of whom prevaricated exceedingly,) but neither of them did, or would prove the hand-writing of Dorothy Moore the widow. Here Mr. Nott, for defendant, called for a nonsuit, which counsel for plaintiff, who was opposed by Mr. Smith, BAY, J. observed, that in this case, a very clear life estate was brought down from the original grantee to Dorothy Moore, the widow; and, however clear and regular the evidence was on every other part of this case, and he was free to confess it was exceedingly clear on all the other points, yet there was not a tittle of testimony to shew that she had ever parted with her right; there was therefore a total defect of evidence as to the tranfer of her estate. To suffer a case therefore to go to the jury, when there was nothing to support the plaintiff's right, would, in his opinion, be a nugatory act. The plaintiff by his own shewing, had traced the estate down to the widow, but had offered nothing to shew she had ever parted with her interest in it to the plaintiff, or to any other under whom he claimed. The plaintiff was accordingly nonsuited, agreeably to Mr. Nott's motion. This case was afterwards taken up to the court of appeals at Columbia; where a motion was made to set aside this nonsuit, and to have the cause reinstated on the docket in Pinckney district. Mr. Smith, in support of this motion, contended, that there were certain grades or degrees of evidence known in our law, which under different circumstances were all admissible in our courts of justice. That the first and most important rule of evidence was, that the highest evidence the nature of the thing is capable of, ought always to be given. The next rule was, where the highest cannot be procured, then the next best evidence should be offered that can be got. And this rule he said, was divisible again from violent presumptions which are next to certainty, down to reasonable presumptions arising out of the peculiar circumstances of the case, and that in all cases of this latter kind the juries were the competent judges, and not the court. Now to test the case under consideration by these principles, he said, there were two witnesses to the bargain and sale offered in evidence from Thomas Moore the son, and Dorothy, the widow of James Moore, to David Hopkins, under whom the plaintiff claimed. That one of these witnesses was dead, and the other out of the state, so that his attendance could not be procured, nor could any process compel him to attend and give evidence, but both their handwritings had been proved; also the hand-writing of Thomas Moore the son, to whom the fee of the land had been Hopkins V. De Graffen reid. Hopkins V. reid. given, after his mother's death by the testator's will. So De Graffen- far, he said, every part of the testimony given was clearly within the well known rules of law. The only part wanting was the proof of the hand-writing of old Mrs. Moore, the other party to this deed. This old lady, he said, was far advanced in life, and very infirm; that she had always lived in a remote part of the country, and probably had not signed her name for fifty years before the deed was made. The greatest part of her life she passed under the direction of her husband, and after his death, her son transacted business for her, so that it is not at all improbable, that she never signed her name from the time she left school in her infancy, till she was called upon to sign this deed. No wonder, therefore, that no witness could be found to prove her hand-writing. Under these circumstances, therefore, a greater latitude ought to have been allowed, than in common or ordinary occasions. The rule of law ought not to have been too rigorously laid down; but it ought have been submitted to the jury, to presume from the whole circumstances of this case, and to determine whether she had signed this deed or not. It was well known, he said, that presumptions arising from circumstances, was a species of evidence often resorted to, and admitted in our courts; and proof of such circumstances, which could not have existed, unless a particular fact had pre-existed, to give rise to them, had been admitted as presumptive evidence of such fact. Was it to be presumed, that two discreet disinterested men, would have signed their names, and attested the execution of a deed, unless such deed had really existed? The thing is not supposable. The son also joining in this deed, and conveying away the fee of the land, is another circumstance to prove, that it is highly probable the mother must have joined her son in conveying away her life estate, which she could not long enjoy. All these were circumstances very proper for the consideration of the jury, and should have been submitted to them by the district court instead of directing a nonsuit. See case of Brown aud Frost, ante. |