contracts and evidence. The act of
instrument of writing, at the request of the party making
same, and subscribing it as a witness. 3 P. Wms. 254 2 Ves. 454 1
& B. 362,3 Marsh. 146, 3 Bibb. 494, 17 Pick. 373.
2. It will be
proper to consider, 1. how it is to be made 2.
bow it is proved, 3. its
effects upon the witness, 4. its effect
upon the parties.
The attestation should be made in the case of wills,
agreeably to the
direction of the statute, Com. Dig. Estates, E 1
and in the case of deeds
or other writings, at the request of the
party executing the same. A person
who sees an instrument executed,
but is not desired by the parties to
attest it, is not therefore an
attesting witness, although he afterwards
subscribes it as such. 3
Camp. 232. See, as to the form of attestation, 2
South. R. 449.
4. - 2. The general rule is, that an attested
instrument must be
proved by the attesting witness. But to this rule there
various exceptions, namely: 1. If he reside out of the jurisdiction
the court, 22 Pick. R. 85, 2. or is dead, 3. or becomes insane,
283, 4. or has an interest, 5 T. R. 371, 5. or has married
the party who
offers the instrument, 2 Esp. C. 698 6. or refuses to
testify 4 M. & S.
353, 7. or where the witness swears he did not
see the writing executed, 8.
or becomes infamous, Str. 833, 9. or
blind, 1 Ld.
Raym. 734. From these
numerous cases, and those to be found in
the books, it would seem that,
whenever from any cause the
attesting witness cannot be had secondary
evidence may be given.
But the inability to procure the witness must be
therefore, when be is unable to attend from sickness only,
evidence cannot be dispensed with. 4 Taunt. 46. See 4 Halst. R.
Andr. 236 2 Str. 1096, 10 Ves. 174, 4 M. & S. 353 7 Taunt.
251, 6 Serg. &
Rawle, 310, 1 Rep. Const., Co. So. Ca. 310, 5
Cranch, 13, Com. Dig. tit.
Testmoigne, Evidence, Addenda, 5 Com.
Dig. 441, 4 Yeates, 79.
3. When the witness attests an instrument which conveys
away, or disposes
of his property or rights, he is estopped from
denying the effects of such
instrument, but in such case he must
have been aware of its contents, and
this must be proved. 1 Esp.
6. - 4. Proof of the attestation
is evidence of the sealing and
delivery. 6 Serg. & Rawle, 311, 2 East, R.
250, 1 Bos. & Pull.
360, 7 T. R. 266. See, in general, Starkie"s Ev. part
2, 332, 1
Phil. Ev. 419 to 421, 12 Wheat. 91, 2 Dall. 96, 3 Rawle"s Rep.
1 Ves. Jr. 12, 2 Eccl. Rep. 60, 214, 289, 367 1 Bro. Civ, Law,
286, Gresl. Eq. Ev. 119 Bouv. Inst. n. 3126.
Source: Bouviers Law Dictionary 1856 Edition
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