Penny ex dem. Penny v. Corwithe, 18 Johns. 499

Penny ex dem. Penny v. Corwithe

18 Johns. 499 | N.Y. Sup. Ct. | 1821

Per Curiam.

To prove the execution of a sealed instrument, the subscribing witness, if within the jurisdiction of the Court, must be called. It is the peculiar office of such a witness to speak to the acts of signing, sealing, and delivery. But the question of rasure stands on a different footing. It is a fact, as to which the subscribing witnesses are not, particularly, and exclusively, called upon to attend. In the present case, it appeared, from the evidence of the subscribing witness, that Smith’s name must have been struck out after the execution of the instrument, and after the attestation of the witness. This fact was offered to be proved, and, also, that it was done with the consent, and in the presence of all the parties. This distinguishes this case from one where an erasure exists in a deed, and it is uncertain whether it was made before, or after the execution of the instrument. In such case, the rule is laid down by Phillips (p. 35!.) to be, that it may be proved either by the subscribing witness, or by any other person who saw the rasure made; and, on the same principle, by any other person who can testify that he saw the rasure before the deed was executed. The evidence ought to have been ad- / mitted to show, that although Smiths name was struck out ( after the execution of the deed, it was done by the consent ) of all parties; for it is competent to the parties interested, ] to consent to an alteration in a deed, after it is executed, > and then the deed takes effect, as a new execution of it.

The instrument of the 16th of April, executed by the parties, and to which Smith was not a party, is a solemn *502recognition, that the agreement to submit was^:between^, ^j those four,to the exclusion of Smith; and we cannot perceive^* ü why that instrument, in itself, is not binding oath¿ parlies; but, most certainly, the evidence that Smith’s name was struck out, with the consent of all the parties, ought to have been admitted. Had the second submission been ineffectual, as the judge considered it on the trial, his conclusion.would have been right, that the former submission had settled the disputed line. If, however, it was effectual, it was a solemn waiver of the first submission, and the parties, would be concluded by the line established by the last arbitrators. There must be a new trial; the costs to abide the event of the suit.

New trial granted.