Cooper v. O'Brien

Lumpkin, Justice. The only question in tbis case is whether or not a bill of sale attested by two subscribing witnesses is admissible-in evidence upon due proof of its execution by one only of them, without calling or accounting for tbe other. Tbe code, §3837, lays down tbe rule in general terms that the-subscribing “witness” must be produced in all cases except: in specified instances; and in section 3838 it is declared that if “tbe witness” is not produced, or, upon being produced, cannot recollect tbe transaction, tbe court may heaiany other evidence to prove tbe execution of tbe instrument. There is another section of tbe code, viz: §3755, which has some bearing upon tbe question. It declares-that “tbe testimony of a single witness is generally sufficient, to establish a fact.” Save in tbe instance of a will offered, for probate in solemn form, we do not now recall any law' expressly requiring the production of all tbe subscribing witnesses, or accounting for their absence, where tbe instrument sought to be introduced has been attested by more than one. We find that tbe expressions, “tbe witness must bé called or accounted for,” or, “tbe witnesses, must be-called of accounted for,” have a number of times been indifferently used'in former adjudications by tbis court; but in every instance, so far as we have been able to ascertain by a somewhat careful search, these expressions'were-used in cases where it appeared that an effort bad been made to'introduce tbe instrument in question without calling or accounting for any subscribing witness. It may, therefore, we think, be safely .asserted that, the identical question in band has never before been definitely decided by tbis court; and accordingly, we feel at liberty to dispose of it on general principles. • ' f - [775] It may be remarked at tbe outset that inasmuch as a registered deed, or other document, is admissible in evidence without proof of its execution, and as the affidavit of a single subscribing witness is sufficient to admit such a paper to record (Green et al. v. Glass et al., 29 Ga. 246; Code, §2707), there would seem to be no good reason for holding that the testimony of one subscribing witness is insufficient, to render admissible in evidence* an attested instrument which has not been registered. The following authorities seem to establish the proposition -that the testimony of a single witness for the purpose indicated will suffice: “If the deed or instrument produced purport to have been attested by one or more witnesses, whose names are subscribed, the party must call at least one of the witnesses; and in cases where the instrument labors under any doubt or suspicion, he ought to call them all.” Starkie Ev. (10th ed.) *504. In 1 Gr. Ev. §569, it is stated that the instrument “must be proved by the subscribing witnesses, if there be any, or at least by one of them.” See, also, 2 Taylor, Ev. §1839. "We extract the-following from 1 Am. & Eng. Enc. of Law, 941: “In general, attested writings cannot be proven without producing in court at least one of the attesting witnesses.” In the present case, the plaintiff, who sought to introduce the bill of sale, proved its due execution by one of the subscribing witnesses, and also the fact’ that its Execution was attested by the other subscribing witness. In a very similar .case, that of Melcher v. Flanders, 40 N. H. 139, it was decided, that the testimony of one only of two subscribing witnesses to- a deed, to the effect that he and the other subscribing witness were present and saw the execution and subscribed 'their names as witnesses, was ordinarily sufficient, without calling or accounting for the other witness. Again, in Jackson v. Sheldon, 22 Me. 569, it was held not to be necessary to call more than one of two sub [776] scribing witnesses in a deed before other testimony in relation to its execution and delivery could be legally admitted. In Barron v. Walker, 80 Ga. 123, Chief Justice Bleckley remarked that the court erred in admitting in evidence a written assignment purporting to have been attested by two witnesses, “without proof of it by one or both of the ■subscribing witnesses, and without accounting for their absence.” It is evident from this expression that he at least had in mind that the calling of one only of these witnesses might have been sufficient. On the whole, therefore, we think the trial judge erred in rejecting from evidence the bill of sale offered in the present case. Judgment reversed.