ATTESTATION

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ATTESTATION


ATTESTATION, contracts and evidence. The act of witnessing an instrument of writing, at the request of the party making the same, and subscribing it asa witness. 3 P. Wms. 254 2 Ves. 454 1 Ves. & B. 362; 3 Marsh. 146; 3 Bibb.494; 17 Pick. 373. 2. It will be proper to consider, 1. how it is to be made 2. bow it isproved; 3. its effects upon the witness; 4. its effect upon the parties. 3.- 1. The attestation should be made in the case of wills, agreeablyto the direction of the statute; Com. Dig. Estates, E 1 and in the case ofdeeds or other writings, at the request of the party executing the same. Aperson who sees an instrument executed, but is not desired by the parties toattest it, is not therefore an attesting witness, although he afterwardssubscribes it as such. 3 Camp. 232. See, as to the form of attestation, 2South. R. 449. 4.-2. The general rule is, that an attested instrument must be provedby the attesting witness. But to this rule there are various exceptions,namely: 1. If he reside out of the jurisdiction of the court; 22 Pick. R.85; 2. or is dead; 3. or becomes insane; 3 Camp. 283; 4. or has an interest;5 T. R. 371; 5. or has married the party who offers the instrument; 2 Esp.C. 698 6. or refuses to testify 4 M. & S. 353; 7. or where the witnessswears he did not see the writing executed; 8. or becomes infamous; Str.833; 9. or blind; 1 Ld. Raym. 734. From these numerous cases, and those tobe found in the books, it would seem that, whenever from any cause theattesting witness cannot be had secondary evidence may be given. But theinability to procure the witness must be absolute, and, therefore, when beis unable to attend from sickness only, his evidence cannot be dispensedwith. 4 Taunt. 46. See 4 Halst. R. 322; Andr. 236 2 Str. 1096; 10 Ves. 174;4 M. & S. 353 7 Taunt. 251; 6 Serg. & Rawle, 310; 1 Rep. Const.; Co. So. Ca.310; 5 Cranch, 13; Com. Dig. tit. Testmoigne, Evidence, Addenda; 5 Com. Dig.441; 4 Yeates, 79. 5.-3. When the witness attests an instrument which conveys away, ordisposes of his property or rights, he is estopped from denying the effectsof such instrument; but in such case he must have been aware of itscontents, and this must be proved. 1 Esp. C. 58. 6.-4. Proof of the attestation is evidence of the sealing anddelivery. 6 Serg. & Rawle, 311; 2 East, R. 250; 1 Bos. & Pull. 360; 7 T. R.266. See, in general, Starkie's Ev. part 2, 332; 1 Phil. Ev. 419 to 421; 12Wheat. 91; 2 Dall. 96; 3 Rawle's Rep. 312 1 Ves. Jr. 12; 2 Eccl. Rep. 60,214, 289, 367 1 Bro. Civ, Law, 279, 286; Gresl. Eq. Ev. 119 Bouv. Inst. n.3126.

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