case joshua hand vers herbert james in c b it shall be leave to a jury to  determine mere from circumstance without any positive proof whether the  witness to a will be all dead set their name in the presence of the testator  Eq Abr pl S c this be a action of ejectment on the demise of Hutchinson on the  saint of October Geo at a trial at the sit on the that of February Geo before  chief justice Eyre the plaintiff lessor make title to the premise as heir at  law to William Hutchinson the defendant on evidence show that William  Hutchinson and Hannah his wife be joint purchaser in fee Hannah survive and by  will date the that of April devise to the defendant at the execution of the  will the word subscribe be sign seal publish and declare by the testatrix as  her last will and testament in presence of we and then three witness set their  name but those witness be all dead there be no proof that the witness set  their name in the presence of the testatrix but one witness be a attorney of  good character and it be leave to the jury who find a verdict for the  defendant but it be agree by consent that a case shall be make and leave to  the opinion of the court whether this matter shall have be leave to the jury  to determine whether the witness set their name in the presence of the  testatrix sergeant Eyre for the plaintiff this be a necessary circumstance by  the statute of fraud saint car c S a to be prove it be express require that  the witness shall set their name in the presence of the testatrix and it  appear by the case that it be not prove for all the witness that can have  prove it if it be do be dead and therefore it ought not to have be leave to  the jury who can no more tell it be than that it be not so comens sergeant  chapel contra the query be not whether the witness shall subscribe in the  presence of the devisor but whether the evidence of this shall not be leave to  the consideration of the jury if the jury can have express proof they may  determine on circumstance as in the case of livery on a feoff when it be not  endorse or the execution of a deed that be enrol but not prove or a deed prove  by the counterpart when the original be lose per cur this be a matter fit to  be leave to the jury which be all that be refer comens er p to the court the  witness by the statute of fraud ought to set their name as witness in the  presence of the testatrix but it be not require by the statute that this shall  be take notice of in the subscription to the will and whether insert or not it  must be prove if insert it do not conclude but it may be prove contra and the  verdict may find contra then if not conclusive when insert the omission do not  conclude it be not so and therefore must be prove by the best proof which the  nature of the thing will admit in case the witness be dead there can probable  be any express proof since at the execution of will few be present but the  devisor and witness then as in other case the proof must be circumstantial and  here be circumstance three witness have set their name and it must be intend  that they do it regular one witness be a attorney of good character and may be  presume to understand what ought to be do rather than the contrary and there  may be circumstance to induce a jury to believe that the witness set their  hand in the presence of the testatrix rather than the contrary and it be a  matter of fact be proper to be leave to they as whether livery be give on a  feoff when no livery be endorse whether a deed be execute when only a  counterpart be produce comens c and the court be of opinion that the plaintiff  ought to be nonsuit the same question come before the court in the case of  cross v paulet report in Str and it be decide upon the authority of the  present case that a compliance with all the circumstance enjoin by the statute  of fraud be a matter of fact proper to be leave to the determination of a jury