Heirs v. Hendricks
Before: Heydenfeldt
Synopsis
To admit proof of the handwriting of a witness to an instrument, it must be shown that the witness is beyond the jurisdiction of the court, or, that he could not be found after diligent search for him had been made; that his absence may be inferred.
The act of 1851, sect. 21, gives to papers properly recorded, the like effect as the originals, but it does not dispense with proof of execution.
The certificate of a tax collector, offered to prove payment of taxes, so as to show that there was no abandonment of the possession of the premises, is not evidence, where the tax collector himself can be called as a witness.
In his absence, his receipt for taxes, with proof of its execution, would be admissible.
Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred.
The execution of the agreement between Powell and Leidersdorf was not properly proved. The proper predicate to the truth of the handwriting of a subscribing witness, is to show that the witness is beyond the jurisdiction of the court, or to have the same inferred from failure to find him after diligent inquiry.
The introduction of a copy from the record, in the recorder’s office, does not cure this defective evidence.
The Act of 1851, p. 204, sec. 21, cited by the plaintiff s counsel, gives to copies of properly recorded papers “the like effect” as the originals. But it does not make the copy superior to the original, so as to dispense with proof of execution.
The certificate of the tax collector was also improperly admitted.
If the payment of taxes was sought to be proved, in order to show that there was no abandonment of the premises, the evidence of the collector himself would be the best, and in his absence his receipt for the taxes, with proof of its execution, would be admissible.
The declarations of Leidersdorf to Gillespie were likewise inadmissible. For these reasons, the judgment is reversed, and the cause remanded.
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