#### Baker vs. Blount.

'T'HIS was debt on a bond- — and one Andrew Adie had subscribed as a witness ; he had been summoned, and did not attend:: a commission was issued, and when.before the commissioners, he refused to, depose, alledging that his papers were not in his possession \ at the next court be did not attend, and the iourt issued an attachment against him : hearing of this, he removed into another county. It was proved that Blount, before giving this bond, had left money with a company, of whom thia Adie was one, or had lent them money under such circumstances as raised, a presumption that they were to pay this debt when recovered. The truth now coming in, all these circumstances Were proved to the court •, and Baker moved to be at liberty to. prove his hand 'Triting in the same manner as if he resided out; of the state, being only an r.nstrumentary witness^ — and after much argument,

Taylor^ Judge,

declared his opinion. The first rule of evidence' is, that the plaintiff shall produce the best in his power,, to exclude the idea that the better evidence remaining in hio possession was not withheld because it made against him. T© this rule however there are divers exceptions, founded on neces-. sity: if a man dies, and the subscribing witness.becomes his ad-, mjnistrator or executor, or becomes blind, or removes out o£ the state where the process of the court cannot reach; here, in such case.s ant] na.any others^ the necessity of the thing forms aa *405exception, and causes the presence of the witness to be dispensed with, The grounds of these, exceptions do not make a better cause for exception than the cause before us; a fraud is practised to prevent the obtaining of this testimony, because if produced it would probably subject the witness to the payment of the debt j and fraud whenever attempted under the.'sanction of the court, should be obviated by its decisions. The witness attempts to avail himself of the practice of the court, to prevent a recover}7; and it would indeed be an odium upon the law if such artifices could be effected. If a witness, when searched for, cannot bs found, his hand writing shall be proved ; here the witness continues to be as much absent as if he could not be found, and the reason for admitting his testimony in the case now before us is as strong as if he could not be found. Let proof be given of his hand writing. It was given, and there was

A verdict and judgment for the plaintiff.