Tompson v. Fisher

Morton, J. - The burden of proof in this case was upon the plaintiff, to show that the note in dispute was signed in the presence of an attesting witness, but this was a question of fact to be submitted to the jury, if there was any competent evidence tending to prove that fact. Drury v. Vannevar, 1 Cush. 276. The note in question is a note which upon its face appears to be attested in due form. The attesting witness testified that he had no recollection of the matter, but that he thought the signature was his, and that, if he signed it, he must have seen the maker sign it, or must have known that he signed it. This is some evidence of the due attestation of the note. It often happens in practice, that an attesting witness to a will, deed, ot 561 other paper, executed long before he testifies, is unable to recollect the fact or the circumstances of his attestation, and can only swear that, in his judgment, his signature is genuine, and that he saw the maker execute it. Ordinarily, the jury will derive some aid from the character and appearance of the witness and the parties, and from the circumstances surrounding the case. But it is their province to weigh the evidence and determine whether it satisfies them of the due attestation of the paper. We are of opinion, therefore, that the case at bar should have been submitted to the jury with proper instructions. Case to stand for trial.