SUBSCRIBING WITNESS. One who sub scribes his name to a writing in order to be able at a future time to prove its due execu tion. An attesting witness.
In order to make a good subscribing wit ness, it is requisite that he should sign his name to the instrument himself, at the time of its execution, and at the request or with the assent of the party ; Hollenback v. Flem ing, 6 Hill (N. Y.) 303 ; 11 M. & W. 168 ; Mullen v. McKelvy, 5 Watts (Pa.) 399.
The practice is, if the subscribing witness cannot be produced,. to prove his signature, and that proves the signature of the maker of the instrument.
If the subscribing witness Is out of the ju risdiction, and no person can be found with in the jurisdiction who can prove his hand writing, the handwriting of the obligor may be proved.
Qurere whether, if the handwriting of the witness is proved, that of the obligor ought not to be also ; Clark v. Sanderson, 3 Binn.
(Pa.) 192, 5 Am. Dec. 368.
Wigmore, Code of Evidence, states the rule that the attesting witnesses to a document must first be called as being applicable only where attesting witnesses to a document are required by law. The attesting witnesses must first be called, or it must be shown that their testimony is unavailable—the witnesses being dead, or outside the jurisdiction, or cannot be found, etc. It may be shown that the doc ument is more than thirty years old, raising a presumption that the witnesses are dead. The rule does not apply, because of an estop pel or some other rule of positive law, or be cause of a rule of pleading or a judicial ad mission, or if the opponent claims under the same instrument, but not because it was merely produced by the opponent.