Jerman v. Hudson

Headnote

If an instrumentary witness cannot be found, proof of his hand-writing will be suflicient.

On a return of non est inventus to an attachment against a witness, the party will be let into other proof.

Where the witness cannot be had, proof of Ms hand-writing and not that of the party, is the proper proof of the instrument.

Case. Narr., special count, and the common money counts. Plea, general issue.

The action was by assignee against assignor of a judgment. Daniel Hudson recovered a judgment against one Cathel, and assigned it under his hand and seal and before two witnesses (Digest 42,) to James A. Hudson, who in like manner assigned to plaintiff. Jerman executed the judgment against Cathel, but got nothing. The sheriff returned “ nulla bona.” And thereupon, he brought suit against the first assignor.

The attesting witnesses to the assignments were summoned, but did not appear. An attachment was prayed and issued against them which was returned “ not found.”

The plaintiff then asked to be permitted to make other proof of the

assignments, and proposed to prove the hand-writing of Daniel Hudson, the assignor.