2 Wend. 575 | N.Y. Sup. Ct. | 1829
In England a written instrument, whether sealed or not, must be proved by the subscribing witness, if there be one, and his attendance can be procured. In this state, the rulp has been relaxed as to instruments not under seal, (Hall v. Phelps, 2 Johns. R. 451;) or at least in regard to negotiable paper. (16 Johns. R. 201.) In the first of these cases, Spencer, justice, says, “ The confession of a party that he gave a note, or any instrument precisely identified, is as high proof as that derived from a subscribing witness. The notion that those who attest an instrument are agreed upon to be the only witnesses to prove it, is not conformable to the truth of transactions of this kind, and to speak with all possible delicacy, is an absurdity.” This remark is perfctly just, not only as regards notes, but instruments under seal; but the old rule has been adhered to by this court in regard to sealed instruments, notwithstanding what was said in the case of Hall v. Phelps. The only question, therefore, which we are now at liberty to discuss is, whether Mr. Shipherd was a subscribing witness 1 So long ss we retain the rule, we must preserve the reason assigned