28 Barb. 481 | N.Y. Sup. Ct. | 1858
The assignment being a component arid essential part of the plaintiff’s right to maintain this action, if its execution was not legally proved, this verdict cannot he sus-r tained.
The elementary principle is, that the execution of every attested instrument, whether under seal or not, must be proved by the subscribing witness, if he can be produced, and is capable of being examined. The reason is, that he may be able to state the time of the execution, and the circumstances attending it, which may be unknown to others; and the party, interested in defeating the instrument, is entitled to avail himself of all the knowledge of the subscribing witness, relative to the transaction. The rule is stated by Phillipps to be
But, at all events, the rule remains sufficiently effectual to dispose of this case.
The instrument, which was admitted in evidence, was essential to the action; and it was a sealed instrument. It should have been proved by the subscribing witness. If, indeed, his absence had been sufficiently accounted for, as that he was dead, or could not be found after diligent inquiry, or- that he
It is unnecessary to consider the other questions presented on the argument, as the question I have been considering controls the case. The judgment should be reversed with costs, and a new trial ordered.
The necessity of calling a subscribing witness 'to prove the execution of a sealed instrument, has always been conceded, even by those judges who have considered the rule as improvident or unnecessary. In this state it has been relaxed as to promissory notes; but it is still a matter of doubt whether the rule is not retained as to other papers not under seal, even in this state, unless they come in collaterally on the trial of the cause.
The case of Hallenbach v. Fleming, (6 Hill, 303,) fully establishes the necessity and propriety of calling the subscribing witness, and a large number of cases are referred to in that decision to sustain the principle. The change in the law, which allows parties to be witnesses, does not, in my opinion, alter the rule, or afford any reason for dispensing with it. No man should be compelled to resort to his adversary for evidence, if he can have a witness who is disinterested. In this case the defendant was not present at the execution of the assignment: the only person there who was examined was the assignor ; and it is apparent that he was an adverse witness, having made the assignment, in order to have the action brought by another than himself. He had all the feelr ings of an adverse party.
I had occasion in the general term of the common pleas to examine this question in reference to the change of the law as to parties being witnesses, and we there held that the witness must still be called. (Story v. Lovett, 1 E. D. Smith, 153.)
Dames, Clerlce and Ingram ham, Justices.]
In the opinion written hy Judge Woodruff, I fully concurred.
Davies, P. J., concurred.
Judgment reversed.