Cooke v. Woodrow

Marshall, Ch. J. after stating the case as it appeared in the bill of exceptions, observed. That the court had some difficulty upon the point. The general rule of evidence is,, that the_ best evidence must be produced which the nature of the «ase admits, and which is in the power of the party. In consequence <Sf -.that rule, the testimony of the subscribing witness must be had if possible. But if it appear that the testimony of the subscribing witness cannot be had, the- next best evidence is proof of his hand-writing. In the present case it does not appear to^ the court that the testimony of the subscribing witness could not have beensobtained if proper diligence had been used for that purpose. It does not appear that the witness had ever left Norfolk. . It is not stated that any inquiry concerning him had been made there. If such inquiry had been made, and he could not be found, evidence of hiShand-writing might have been permitted. But *15 as the case appears in the bill of exceptions, the court below has not erred. Judgment affirmed with costs.