Mr. Nott, against the motion, said he had taken two grounds on the trial, either of which he presumed would entitle his client to a nonsuit. The first respected the will, to which there were three subscribing witnesses; two were dead, and the third was out of the state. To come up to the requisites of the statute of frauds, the hand-writing of each witness should have been proved by a separate witness; otherwise, one witness might substantiate a will, which required three to pass a freehold. The second was the objection on account of Mrs. Moore's hand-writing not being proved. On this second ground he succeeded, though he conceived he was entitled to it on the first. That the nonsuit was properly ordered on the second ground, by the circuit court, as the hand-writing of Dorothy Moore had not been proved. No matter how clear all the other parts of the testimony was; this important link in the chain of plaintiff's title, was wanting. The rule of law, in cases where witnesses to a will or deed were dead or out of the state, was first to prove the hand-writing of the witnesses, then the hand-writing of the party to the will or deed. 3 Burr. 1247. this was a case of a will. Without this last and essential part of the proof, all the rest was unavailing. The same doctrine is laid down in Doug. 89, 90. There it is said, if you cannot procure the subscribing witness to a bond, you must prove the obligor's hand-writing to the bond. The presumptive evidence contended for, he said, was dangerous in the extreme, as it always held out a temptation to a jury, to put their own construction on slight or immaterial circumstances, whether they brought a case within the rules of law or not, which went to lessen the security men had for their rights in a court of justice. What was evidence and what was not, was one of the sacred duties of the court always to determine; and should not be committed to the uncertain, fluctuating sentiments or opinions of uninformed jurymen. The judges were all of opinion, that the first objection taken on the trial was very properly overruled by the pre siding judge; that the proving the hand-writing of the three witnesses to a will by any one credible witness was sufficient, if they were dead or out of the state; it did not by any means impugn or contravene the statute of frauds, which required three witnesses to a will; on the contrary, it established the requisites of the statute. The statute did not require that there should be three witnesses to prove a will; (though if they are all alive it is best to produce them ;) any one witness to it, is sufficient to make such proof, if the others are dead or absent. There is therefore a great difference, between the making of a will on the part of a testator to devise lands, and the proof of it afterwards, either before the ordinary or in a court of justice. In a court of justice, a will is considered only as a species of conveyance of lands, and therefore, it may be proved like any other deed. But as to the other objection, BURKE and GRIMKE were of opinion, that too rigid a construction was given to the rule of law, as to the proof of Mrs. Moore's hand-writing to the bargain and sale; and that the nonsuit ought not to have been ordered, but it should have been sent to the jury under all the circumstances of the case, to determine whe ther she had or had not executed the deed under consideration. They admitted the general rule of law as laid down in 3 Burr. 1247. and in Doug. 89, 90. that it is necessary after you have proved the hand-writings of the witnesses, then to prove the hand-writing of the party to the bond or deed. But said, that this case formed a strong and marked exception to the general rule on this head. In the usual and ordinary transactions between men in the management of business with each other, the rule certainly ought to be adhered to. In a case, however, like the present, where the hand-writing of an old infirm woman, who did not sign her name more than once probably in fifty years, it was mext to an impossibility to find a man living, who could prove her hand-writing; therefore, the proof of all the solemnities usually attending the execution, delivery and attestation of such a deed, as were not likely to happen, un less she had executed it, ought to have gone to a jury, as presumptive evidence for them, to determine whether she actually did sign, seal and deliver it, or not. The rule of law, therefore, quoted by the plaintiff's counsel on the argument, would well apply in this case; namely, where the best evidence a thing is capable of cannot be procured, then the next best ought to be admitted; not as conclusive, but as presumptive evidence of the fact. The nonsuit was therefore set aside, and the cause ordered to be placed on the docket in Pinckney district, for trial again at the next court. Present, BURKE, GRIMKE and BAY. N. B. BAY, J. afterwards, upon reconsidering this case, assented to the above decision. WILLIAM DAUB against JAMES MARTIN. CASE from Camden. in This was an action of debt on a judgment in trover, which the jury under the direction of the judge, refused to allow interest. A motion for a new trial was moved for by Mr. Mathis, on the ground that all judgments under the instalment act of 1787, carry interest; and the presiding judge in this case, had directed the jury not to allow it. But the mo tion was overruled, because this was a suit originally on a tort, and the plaintiff was entitled to his execution on enter Martin. Daub ing up his judgment. The instalment act of 1787 did not prevent him, and if he chose to let the judgment remain over so long unsatisfied, it was his own fault. Besides, this was an action in its origin sounding in damages, and it was not the usage and practice of the court to allow interest on damages. They were therefore of opinion, that the presiding judge directed the jury properly not to allow interest. Rule for new trial discharged. Present, BURKE, GRIMKE and BAY. Columbia, 1798. A writ taken out against one administrator where several are -appointed and qualified to administer on the intestate's estate, is null DAVID HOPKINS against The Administrators of M'PHERSON. THIS was an action of assumpsit. Plea non assumpsit infra quatuor annos. Verdict for defendants under the direction of the court. Motion for a new trial, on the ground of misdirection. and void, and The circumstances of this case, as reported, were these: will not pre- A writ was first taken out against one of the administrators tute of limit- alone, when several had been appointed and qualified; the vent the sta ations from running a plaintiff upon discovering his mistake, discontinued his acgainst a debt. A second writ tion and commenced another one against all the adminisagainst trators all after the administrators; the first writ was in time to bar the statute of limita discontinu- ations, but the second was lodged after the statute had run ance of the first, will not out against the debt; so that the only question was, whecure the de- ther the lodging of the first writ had taken the case out of fect where the statute has the statute or not? The court was unanimous, that the first run before the lodging of the being void, it gave no right whatever to the plaintiff; and writ in the sheriff's of fice: when the second writ (which was valid) issued, the statute of limitations had run out and barred the recovery. Rule for new trial discharged. Present, BURKE, GRIMKE and BAY. Hopkins V. The Administrators of M'Pherson. The Devisees of PHILIP HAWKINS, deceased, against Orangeburgh 1798, A reservation of lands for tract of the use of a TRESPASS to try title to land, before BAY, J. This action was brought to try the title to a land, adjoining the town of Granby, commonly called town, is a coSaxagotha town. Mr. Holmes, on the part of the plaintiffs, in support of venant in law between the state and people, that those lands shall be appropriated only for the use of the in habitants of said town, and for no their title, produced a grant to Job Marion, for 764 acres of land, dated in February, 1770, then said to be situated on Santee river, but in fact and in truth, situated on the west. other purside of the Congaree river. He next produced regular conveyances from Job Marion, the grantee, to Benjamin Farrow; and also conveyances from Farrow to Philip Hawkins, under whom the plaintiffs claimed. pose; so that tained for the terwards, any grant ob said lands af is null and void as much as a junior grant had been previ When these conveyances were inspected and examined for lands by the surveyors, it appeared that only 72 acres were in dis- which pute with the present defendants, which included the glebe ously granted lots in the town of Granby, and part of the common. Mr. Purcell, and Mr. Bynum, two surveyors, were then called and sworn, and they both agreed in opinion with regard to the situation of the lands in dispute, which lay between the main road leading to Charleston and the Congaree river, and that it was a part of Saxagotha town; and both away. |