5 N.J.L. 449 | N.J. | 1819
The Chief Justice delivered the opinion of the court.
This is an action of debt upon a sealed bill, in these words, to wit. “ For value received, I promise to pay Daniel Newbold or order, on or before the first day of May next, one hundred and seventy-five dollars, with interest. April the first, one thousand eight hundred and six.
Witness present, Jos. Lamb. (scroll.)
William Coate.”
Upon the trial the plaintiff proved the death and handwriting of the said William Coate, the subscribing witness, and then offered his bill in evidence,
The objection could not be to the scroll or the ink-seal, for the statute is positive, “That any instrument for the payment of money, to which the person making the same, shall affix a scroll, or ink, or other device, by way of seal, shall be taken and adjudged to be of the same force and obligation as if it were actually sealed with wax.” Neither can it be to the mode of proof, for it has so many times been determined, and has become a *principle so well settled, that proof of the death and hand-writing of a subscribing witness to a deed, is sufficient to pass the
The objection then, must rest upon the form of the attestation, if I may so call it, or the his testibus clause, which does not express, as is usual, that the instrument was sealed and delivered in the presence of the witness. The only reason why the proof of the hand-writing of the subscribing witness is taken as sufficient proof of the execution of a deed, is founded upon the presumption that what an honest man hath attested under his hand, is true; that when he says the instrument was sealed and delivered in his presence, the presumption is, that it was so sealed and delivered. But when the instrument itself does not in the body of it, purport to be a sealed instrument, when it is not in the form of a bill, bond or other obligation usually under seal, and when the attestation says nothing about sealing and delivery, this presumption fails. This instrument does not purport to be sealed, the witness has not said that it was sealed and delivered in his presence ; there is nothing in the whol,e writing, importing any such thing. The scroll may have been made after the attestation as well as before, and indeed, judging from the face of the instrument only, the probability is so, for the attestation is not according to the usual form, the common practice of men in similar cases, but wholly different from it.
It is of high importance to keep up the distinction between instruments sealed, and not sealed; they are different in their nature and in their effects, and before they can with safety be confounded together, our whole system of law must be new modeled. Indeed, it may with safety be said, that the statute itself, upon this subject, is
The postea must be delivered to the defendant.
My view of this question, differs somewhat- from that of the rest of the court. When a subscribing witness is dead or absent, it is proper to prove his hand-writing, and proof of his hand-writing is prima facie proof of every thing which appears on the face of the instrument, sufficient to put the other party on his defence,
Rule for new trial granted.
Patterson vs. Tucker, 4 Hal. 332. Boylan ads. Meeker, 4 Dutch. 294. Van Doren vs. Van Doren, Pen. *1022. Reformed Church vs. Ten Eyck, 1 Dutch. 40. Servis vs. Nelson, 1 McC. 94.
Force vs. Craig, 2 Hal. 272.
Den vs. Van Houten, 5 Hal. 270. Kingwood vs. Bethlehem, 1 Gr. 222.