The opinion of the Court was drawn up by
Tenney J.The tenant offered the deed of Ephraim C. Bartlett to herself, which the demandant contended was fraudulently obtained, and required proof of its execution. The deed purports to have been witnessed by one Charles Ewell and also by one Robert Vose, who took the acknowledgment *92thereof as a justice of the peace in the County of Norfolk in the Commonwealth of Massachusetts. The tenant’s attorney testified without objection, that he made inquiry of individuals in the County of Kennebec and in other places, and of all persons, who, he thought, might know any thing respecting the subscribing witnesses to said deed, and that he did not know, and could not learn of any such persons having ever resided in the State. The case finds, that Ephraim C. Bartlett resided in Massachusetts. Upon the production of this proof, the tenant was permitted to offer secondary evidence of the genuineness of the handwriting of the grantor, against the objection of the demandant.
The first question presented is, whether secondary evidence was admissible.
Before the testimony of the subscribing witnesses to an instrument can be dispensed with, it must appear, that they are both out of the jurisdiction of the Court; Prince v. Blackburn, 2 East, 250; Homer v. Wallis, 11 Mass. R. 309; Sluby v. Champlin, 4 Johns. R. 461; are incompetent; or that search has been made for them without success. Cantiffe v. Septor, 2 East, 183. And the same degree of diligence in the search is required as in the search for a lost paper. 1 Greenl. Ev. <§> 575.
The grantor having resided in Massachusetts, when the deed in question was acknowledged, and where one of the witnesses must have lived, renders it probable, that the deed was executed there, and that the other witness also had his residence in the same place. The degree of proof, that the necessary search was made for the attesting witnesses, must be left in some measure to the discretion of the Judge at the trial; and it would be unreasonable to require so full evidence, where there was little or no reason to suppose, that the witnesses had a residence in the State, as when there was no suggestion, that they were out of the jurisdiction of the Court. The proof, that the witnessess to the deed were not to be found within the reach of the process of the Court, was as full as could be required.
*932. Was it proper to permit the tenant to offer the secondary evidence of the handwriting of the grantor in the deed, instead of that of the subscribing witnesses ?
It was formerly held, that when the testimony of a subscribing witness could not be obtained, and secondary evidence was admissible, proof of the handwriting of the witness was required, since it is to be presumed, that the witness would not have subscribed his name in attestation of what did not take place. 1 Stark. Ev. 341. It has also been held in some instances, in such cases, that proof of the signature of the party as well as of the witness should be proved. Hopkins v. Graffennid, 2 Bay. 187 ; Oliphant v. Taggart, 1 Bay. 255; Corneil v. Bickley, 1 McCord, 466. But the latter requirement has not been general, Mott v. Doughty, 1 Johns. Cases, 230; Hamilton v. Marden, 6 Bin. 45. By other decisions proof of the signature of the party to the instrument, having an attesting witness or witnesses, who could not be obtained, has been deemed sufficient. The Court say, in reference to a promissory note with a subscribing witness not to be obtained, where proof of the maker’s signature was allowed, in Homer v. Wallis, 11 Mass. R. 309, “ but as the instrument in question is good without a subscribing witness, we do not think this strictness necessary; however it might be in relation to deeds or other instruments under seal, when something more is necessary to be proved, than the mere signature of the party.” It is said, in 1 Phillip’s Ev. 421 and note, that when, after diligent inquiry, nothing can be heard of the subscribing witness, so that he can be produced himself, nor his handwriting proved, the execution may be proved by proving the handwriting of the party to the deed ; and when the subscribing witness is out of the jurisdiction of the Court, and no person to be found within its jurisdiction, who can prove their handwriting, evidence of the handwriting of the party is sufficient. In the case of Valentine v. Piper, 22 Pick. 85, it is said, “ that when the attesting witnesses are not within the jurisdiction of the Court, proof of the handwriting of the partv is a species of proof, which has often been admitted in this *94Commonwealth, and is more direct and satisfactory, than that of the handwriting of the witnesses; and it was pronounced sufficient.
• In the case at bar, it was in evidence, that it could not be ascertained that either of the subscribing witnesses to the deed ever resided in this State, and there was nothing tending to show, that any one living in the State, had knowledge of their handwriting; and it would often, if not generally, be a fruitless attempt to prove negatively, that there was not evidence to be found within the jurisdiction, of the handwriting of attesting witnesses, who it appears, never lived within the State. On principle and authority, the ruling of the presiding Judge was proper, and the
Exceptions are overruled.