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WILL MAY BE SIGNED BY MAKING MARK: See Ray v. Hill, 49 Am. Dec. 647, note 650; Chaffee v. Baptist Missionary C. of N. Y., 40 Id. 224, note 231. And subscribing witness may sign by making his mark: See Jesse v. Parker, post, 102. But under the Pennsylvania statute, signing by a mark is in no case sufficient: Grabill v. Barr, 47 Id. 418, note 422, where other Pennsyl. vania cases are collected.

EXECUTION AND ATTESTATION OF WILLS GENERALLY: See Jauncey v. Thorne, 45 Am. Dec. 424, note 442, where a large number of cases is col. lected; Nelson v. McGiffert, 49 Id. 170, note 174.

THE PRINCIPAL CASE IS CITED in Beane v. Yerby, 12 Gratt. 244, to the point that it is enough if the testator acknowledges in the presence of the witnesses that the signature to his will is his act, with a knowledge of the contents of the instrument; and in Parramore v. Taylor, 11 Id. 246, to the point that, whether a testator makes his signature before or after the witnesses sign it, is immaterial, where the whole transaction is one continuous act, completed within a few minutes; also in the same case, at page 257, to the point that it is immaterial whether, at the time a testator signs a codicil, be calls it a codicil or not.

RUST ET AL. v. WARE.

(6 GRATTAN, 60.) RELIEF AGAINST JUDGMENT AT Law RENDERED BY MISTAKE and miscalca.

lation on he part of the jury will be granted by a court of equity, where the evidence of such mistake and miscalculation would, if discov. ered in time, have furnished good ground for a new trial. And when the case is one that requires the settlement of accounts, this court will not direct a new trial at law, but will order a reference to a commissioner, and will itself give the proper relief. Bill filed in 1843 to obtain an injunction to a judgment at law. The judgment sought to be enjoined was obtained in an action of assumpsit brought by Josiah W. Ware against James C. Ford, William Rust, Alfred Rust, and Richard K. Littleton, late partners under the style of James C. Ford & Co., to recover the amount of an account for grain delivered by the plaintiff at the mill of the defendants. All the defendants in said action were served with process, except Ford, who was absent from the state and insolvent. Judgment was rendered for seven hundred and sixty-eight dollars and forty-two cents, and interest thereon from the twenty-eighth of January, 1839. The bill in this case charged that on a fair settlement of the accounts between the complainants and Ware, they would be found to be but little indebted to himn; that at the time tha judgment was rendered against them they were unable to procure the personal attendance of Ford, and that without his evi. dence they could not make a defense at law. It also charged

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that since the judgment was rendered William Rust had discovered such information as showed clearly the gross injustice of the judgment, and that no reasonable diligence could have brought this information to light prior to the judgment; that Ware admitted that the amount due to him did not exceed the sum of four hundred and forty-three dollars; that William Rust believes that said last-named sum is more than is justly due to said Ware; that before the commencement of Ware's action he claimed that only about one hundred dollars was due him from Ford & Co. The bill called upon Ware to answer fully the allegations of the bill, and particularly that one which charged that he had admitted that four hundred and forty-three dollars only was due to him. The prayer was for an injunction to the judgment, for a new trial, or a reference of the accounts to a commissioner, and for general relief. Ware answered the bill. He denied that Ford's presence was necessary to enable the defendants in the action of assumpsit to make their defense. He admitted that, in ascertaining the ķalance, there might have been crror in the çululations, and injustice thereby done to the paiitiffs. But he positively denied that William Rust had obtained such information as showed that the judgment was grossly unjust, and that no reasonable diligence could have brought such information to light prior to the judgment. He stated that William Rust had in 1813, after the judgment was rendered, called his attention to certain errors in the calculations, and that being at that time in want of money he had agreed to make a deduction of the amount of the alleged error, if Rust would agree to pay the residue in cash forth with, but that Rust declined to do so. He denied that he had ever said that not more than one hundred dollars were due to him on the accounts. He relied upon the judgment, and claimed that the plaintiffs were precluded from inquiring into the supposed errors in the verdict. One witness testified that Ware had said to him that the amount due to him from Ford & Co. was about one hundred dollars, and that Rust had learned of this statement for the first time long after the judgment was rendered. Another witness testified that, at the time when Rust and Ware examined the papers, Ware said that four hundred and fortythree dollars seemed to be the true amount which was due from Ford & Co. to him. The court below, after hearing the cause in 1844, dissolved the injunction and dismissed the bill, with costs, whereupon the complainants applied to this court for an appeal, which was allowed.

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Robinson, for the appellants.
Morson, for the appellee.

By Court, ALLEN, J. Tho court is of opinion, that the case made by the pleadings, proofs, and admissions of the answer, showed a mistake and miscalculation on the part of the jury, which, if discovered in time, would have furnished good ground for a new trial; and such mistake and the after-discovered testimony entitled the appellants to relief in equity; and the circuit court, instead of dissolving the injunction and dismissing the bill with costs, should have overruled the motion to dissolve, and referred the cause to a commissioner to ascertain the real amount due to the appellee; permitting the judgments to stand as a security for the sum ascertained to be actually due. And the court is therefore of opinion, that said decree was erroneous, and the same is reversed with costs to the appellants, and the injunction is reinstated, and the cause remanded with instructions' to:Direct: an account to ascertain the true amount which the-appellee. was entitled to recover; and for further proceedings in order to a final decree.

CABELL, P., absent.

EQUITY RELIEVES AGAINST JUDGMENT AT LAW, WHEN: See Bellamy v.Wood80N, 48 Am. Dec. 221, note 225; Greenlee v. Gaines, Id. 49; Bank of Tennessee v. Patterson, 47 Id. 618, note 6:22; Pearce v. Chastain, 46 Id. 423, note 426; Knifong v. llendricks, 44 Id. 384, note 387; empstead v. Watkins, 42 Id. 696, note 715; Crafts v. Dexter, Id. 666, note 669; Emerson v. Udall, 37 Id. 604, note 607, where prior cases are collected. This subject is discussed at length in the note to Oliver v. Pray, 19 Id. 603.

JESSE ET AL. V. PARKER'S ADM'RS ET AL.

(6 GRATTAN, 57.) VERDICT OF JURY IN Favor of WILL, SANCTIONED BY Court in which

the trial of the issue of devisavit vel non is tried, is conclusive as to all mere questions of fact depending upon the credit to be given to the tes. timony of the witnesses, and the identity of the paper ofiered for pro

bate is one of the questions of fact settled by the verdict. SUBSCRIBING WITNESS MAY ATTEST WILL BY MAKING HIS Mara, his name

being written by another in his presence and at his request. The validity of such attestation depends upon the signing of the name of the wit. ness by his authority, and in his presence, and not upon the fact of his

making a mark or doing some manual act in connection with the signature. LAW DOES NOT PRESCRIBE MODE OF PROOF OF Will, nor require it to be

proved as well as attested by a specified number of witnesses.

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Boll to set aside a paper which had been admitted to probate in the county court as the will of Jeremy Parker, deceased. The circuit court directed an issue of devisavit vel non to be tried at its own bar. On the trial, it appeared that a few hours before the testator's death, Dr. Talley, his attending physician, being requested to write his will, prepared the paper in question and wrote thereon the testator's name, together with his own name and the names of Jane Sanderson and Sally C. Southall as attesting witnesses. Dr. Talley testified that the testator asked him to write the will; that he wrote it in the testator's own words; that when the will was written he read it to him and asked him if it was such a will as he desired, and that he answered yes; that the testator asked him to sign his name; that he did so in testator's presence, and in the presence of the other subscribing witnesses; that he told testator that it was necessary to have three subscribing witnesses, and he said nothing, but nodded his head in assent; he then signed the names of the other witnesses in the presence of the testator; that he lid not remember whether or not the testator called on him and the other subscribing witnesses to sign their names to the will. Sally C. Southall testified that she did not sign her name to the paper, because she thought it would answer as well for Dr. Talley to write it; that she understood the testator to say yes when asked if that was his will, or if he acknowledged that to be his will; that she let Dr. Talley put her name to the paper without reflection. Jane Sanderson testified that she did not authorize Dr. Talley to sign her name to the will, and that she did not consider herself a witness to it. The contestants asked the court to give the following instructions to the jury: “1. That every solemnity necessary to constitute the paper in controversy the will of Jeremy Parker, deceased, must be proved to the satisfaction of the jury by at least two of the witnesses whose names are subscribed thereto; and if the jury shall not be satisfied, from the evidence of at least two of said witnesses, that every solemnity necessary to constitute said paper the will of said Jeremy Parker, deceased, was observed, then the jury ought to find that said paper is not the will of said Jeremy Parker, deceased; 2. That unless the jury shall believe from the evidence of at least two of said witnesses, that they, said witnesses, attested said paper, and subscribed their names as witnesses thereto, in the presence of said Jeremy Parker, deceased, then the jury ought to find that said paper is not the will of said Jeremy Parker, deceased; 3. That if the jury shall believe,

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from the evidence in the cause, that said paper was wholly written by Dr. Z. Talley, and that the name of the said Jeremy Parker was signed thereto, and the names of the other witnesses were also subscribed by said Talley, then said will was not exeruted and published by said Parker according to the act of the general assembly in such cases made and provided." The court refused to give these instructions, the jury found that the paper in controversy was the true last will and testament of Jeremy Parker, deceased, and the contestants appealed.

Robinson, for the appellants.
Patton, for the appellees.

By Court, ALLEN, J. The court is of opinion that as the jury were the proper judges of the weight and credit due to the testimony of the witnesses, the verdict in favor of the will, sanctioned by the opinion of the court before which a trial of the issue was had, has concluded all mere questions of fact depending upon the credit to be given to the witnesses. The court is therefore of opinion, that upon this record it must be taken that all the requirements of the statute in order to establish a will were satisfactorily proved.

The court is further of opinion, that the question whether the paper offered for probate was identified as the same paper which had been attested as the last will of the deceased was one of those questions of fact determined by the finding of the jury.

The court is further of opinion that, as in the construction of the statute of 29 Car. II., it has been settled that a subscribing witness may attest a will by making his mark, his name being written by another in his presence and at his request: Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, Id. 504; Harrison v. Elvin, 43 Eng. Com. L. 685, the validity of such an attestation depends upon the signing of the name of the witness by his authority and in his presence, and not upon the fact of his making a mark or doing some manual act in connection with the signature. The making of a mark would furnish little, if any, means of verifying the signature; and the doing some manual act in connection with the signature, would furnish no additional safeguard appearing on the body of the instrument, against those frauds which it was the object of the statute to prevent.

The court is further of opinion, that although there must be satisfactory proof that every statutory provision has been complied with in order to establish a will, the law does not prescribe

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