Jackson ex dem. Livingston v. Burton

Kent, Ch. J. delivered the opinion of the court. The proof af the deed was, prima facie, sufficient. It was a deed of 44 years’ standing, and there ivas proof of the handwriting of one of the subscribing witnesses, and that he was dead. If there be two or more subscribing witnesses to a deed, the calling of one to prove the deed has always been held sufficient; and when the witnesses cannot be produced, there is no fixed rule requiring proof of the hand of all the absent witnesses. The only point in the case is, that the absence of Murray, the other subscribing witness, was not accounted for; but the presumption [65] Sat he was not to be found, and that he was either dead or beyond sea, was, under the circumstances, very strong, and sufficient to let the proof go to the jury. Shaw, the witness produced, had always lived in New-York, and did not know such a man as James Murray„ It may be that this witness, Shaw, from his business, as a merchant, was well acquainted generally with the old inhabitants of New-York, and the Murray family. It is probable, also, that the deed was originally executed in New-York, because it was given to Philip Livingston, jun. who was described as “ an attorney at law of New-York.” It ivas a release from nine out of thirty-eight patentees, and from the rule of the colonial government in allowing only a certain number of acres to one patentee, and from the known practice under this rule, it was very probable that most of the patentees resided in Ncm-York, from whence all patents issued; and that the witness Murray may have been a clerk in some of the offices in that city. And when we consider the effects of the revolutionary war, and the great changes which that event produced in the population of the city, the court ought not to be rigid in re. quiring, at this day, some further account of Murray. The rules and practice of the courts leave this point with some latitude of discretion. In Wallis v. Delaney, (7 Term Rep. 266. n.) there were two witnesses to a bond of 16 years’ standing. The handwriting of one, who was absent, was proved, and Lord Kenyon thought that some evidence respecting the other absent witness was necessary; and all that was given was, that there was such a man of that surname, a clerk to the other subscribing witness; but there was no proof of his Christian name, or of his handwriting, or whether he was dead or alive, or of any search for him; yet, as the bond had been executed in America, Lord Kenyon held the evidence sufficient, saying, “ this being the case of a foreign transaction, though, perhaps, the evidence was capable of being more perfect, yet it was sufficient and reasonable evidence to go to the jury, at least, unless it were rebutted by some evidence on the other side.” In the case of Adam v. Ker, (1 B. & P. 360.) the bond was executed in the island of Jamaica, and attested by two witnesses. One was dead and his handwriting proved; the other resided abroad, and no evidence was given of his handwriting; and it was heldjjby the court of G. B. to be unnecessary. These two cases [66] go far in support of the competency of the proof in the present case> The motion on the part of the'defendant, to set aside the ver» diet, is denied. Motion denied.