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Henry and Emott v. Bishop
By the Court, Savage, Ch. J. 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 577 for it, to wit, that the witnesses who subscribe at the time of the execution, are agreed upon by the parties to be the only witnesses to prove it, although this reason is repudiated in re-lotion to instruments not under seal.
Mr. Shipherd was present at the execution of the instrument; he executed it as the attorney for one of the parties ; he has had the possession of it ever since; and the defendant has confessed to him the execution of it since, yet he cannot be admitted to prove it. Any other person to whom the defendant had made the same admission might also subscribe the instrument, and thus the rule be evaded. Such is the necessary conclusion from an adherence to the rule, which I confess always appeared to be an absurdity.
But it has been so long adhered to, that it can be changed only by legislative enactment. According to this rule, a new trial must be granted, that the plaintiffs may produce a subscribing witness.