COOKE AND OTHERS
v.
WOODROW
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In a dispute over the admissibility of evidence regarding a document, the Supreme Court affirmed that testimony from a subscribing witness must be obtained if reasonably available, and that proof of the witness's handwriting may only substitute for such testimony when it is demonstrated that the witness cannot be found despite diligent efforts. The Court held that the trial court did not err in excluding handwriting evidence where there was no showing that proper inquiry had been made to locate the witness in Norfolk where he apparently remained.
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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 as the case appears in the bill of exceptions, the court below has not erred.
Judgment affirmed with costs.
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Stebbins v. Duncan and Others, 108 U.S. 32 (U.S. 1882)
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