Jackson ex dem. Edson v. Gager

Curia, per Sutherland, J. The power of attorney from Obadiah Thayer to Ralph Hascall was not sufficiently proved. It was attested by two subscribing witnesses. The hand writing of the party who executed the power, and of one of the subscribing witnesses, were proved; they both being resident in the state of Massachusetts. No account whatever was given of the other subscribing witness. This should have been done. The general rule is, that where there are several witnesses to a deed, it may be proved by one of them. If none of them are in being, or from any other sufficient cause, cannot be produced, proof of the signature of one of them is sufficient. (1 Phil. Ev. 169.) But before evidence can be given of the hand writing of either of the witnesses, some account must be given of all of them; as that they are dead cr beyond the jurisdiction of the court: or that upon diligent [386] inquiry, nothing can be heard of them: (7 T. R. 261, 262 ,J though I admit the rule has been, under peculiar circumstances, somewhat relaxed, as in case of an ancient deed. (Jackson v. Burton, 11 John. 64.) In Wallis v. Delancey, (7 T. R. 262, note c,) the action was brought on a bond, executed at New York, and attested by two witnesses, Rivington. and Moreton. After the hand writing of the obligor and of Rivington had been proved, Lord Kenyon held the proof deficient, unless some accoimt was given of the other witness. It was then proved that there had been a man of the name of Moreton, a clerk in the store of Rivington, at New York. Lord Kenyon held this sufficient, it being a foreign transaction. (And vid. Adam v. Kers, 1 B. & P. 360.) In Cunliffe v. Sefton, (2 East, 183,) proof of the hand writing of one of the subscribing witnesses was admitted, after it had been proved that, upon diligent inquiry, no trace of the other witness could be obtained. But without such evidence, the proof would clearly have been held defective. (And vid. Clark v. Anderson, 3 Bin. 192. 1 Phil. Ev. 362, N. Y. Ed. of 1816, and the cases there cited.) Here no inquiry was made for Thompson. For aught that appears, he may have been within the jurisdiction of the court, at the time of the trial; and his attendance might have been enforced by the ordinary process. A proper foundation therefore, was not laid for the admission of secondary evidence. I am inclined to think, without ho wever intending to express a definitive opinion upon the subject, that the submission and award, though relating to real estate, and by parol, were valid, and not within the provisions of the statute of frauds. The object of the submission was, to ascertain and settle the true location of a particular lot, of which the parties to the submission were joint proprietors ; the surrounding, or adjoining lots, or some of them, belonging to them in severalty. It was, then, an agreement that the arbitrators named should determine the boundaries of the common lot, ac-or-ding to the description in the partition deed of the par at, under which both parties derived their title. The tit! *o [387] the common, lot was not in question. It was admitted to be in the parties jointly. In Jackson v. Dysling, (2 Caines, 198,) it was held that a parol agreement between the proprietors of two adjoining lots to abide by a certain division line, though it did not pass the land, was sufficient to prevent either party from claiming in ejectment contrary to it; and that it was not within the statute of frauds. Spencer, J. says an agreement by parol to the settlement of a line, appears to me effectual, and not liable to any objection, on the score of the statute of frauds and perjuries. Thompson, J. observes, the submission to two surveyors, and their decision thereupon, cannot be considered as extending to the title of the land; or to have the operation of a conveyance. The submission was oi a mere matter of fact, to ascertain where the line would run on actual survey; beginning at a place agreed on between the parties. Livingston, J. considered the agreement within the statute of frauds. If a parol agreement between the parties, fixing the location or boundaries of a lot, is valid, a similar agreement, that certain persons, named by them, shall ascertain and determine the true location, would seem to be equally exempt from the operation of the statute of frauds. An award, whether it relates to the title, the possession, or the location, or boundaries of land, has not the operation of a conveyance. But the parties are concluded by their agreement, from disputing the location, or boundaries, or title, as settled by the arbitrators. Its operation is in the nature of an estoppel. (Doe v. Rosser, 3 East, 15. Hunter v. Rice, 15 East, 100. Calhoun’s lessee v. Dunning, 4 Dall. 120. Lessee of Dixon v. Morehead, Add. Rep. 216, 219.) The award in such cases is not offered as evidence of title; but to prevent either party to it from setting up a title, &c. which had been negotiated by the award. (Kyd on Aw. Phil. ed. 1808, 62, note d. Sellick v. Addams, 15 John. 197. Shepard v. Ryers, id. 497, and cases there cited. Cox v. Jagger, 2 Cowen, 650.) The evidence offered to show that Stower, one of the arbitrators, dissented from the award, was properly rejected. [388] It did not go to establish the fact, that he did not unite m ma]Qng the award; or that he dissented from it at that' time; but merely that he differed in opinion with the other arbitrators. It was clearly proved that he was present when the award was published; and I think the evidence warrants the belief, that he pronounced the award as the decision of the arbitrators. This is sufficient to constitute it the award of all the arbitrators; (Kyd on Aw. 106;) which, on such a submission, is undoubtedly necessary. But a new trial must be granted on the first ground. New trial granted.