Forsythe v. Hardin , 62 Ill. 206 ( 1871 )

Mr. Justice Thornton

delivered the opinion of the Court:

The main error assigned by appellant is the exclusion of the deed from Egan to Breese as evidence of outstanding title. This has been determined against him upon the authority of Hardin v. Osborne, 60 Ill. 93.

The same case disposes of the errors assigned in giving and refusing instructions.

The cross errors are, by the same opinion, settled in favor of appellee, except the refusal of the court to permit the lease from Hardin to Hamilton to be used as evidence.

There was a subscribing witness to the lease resident in the State, and the court excluded it because he was not produced.

Both parties to the lease were present in court, and were offered to prove the execution, and stated that they did not desire the presence of the subscribing witness, and acknowledged the execution in open court.

The reasons given for the rule that a subscribing witness must be called, if within the jurisdiction of the court, do not apply to this case. Greenleaf says (Greenleaf Ev. 1, Sec. 569) the reason upon which the rule seems best founded, is that a fact may be known to the subscribing witness not within the knowledge or recollection of the obligor, and he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction. This is deduced from the case of Call v. Dunning, 4 East. 53.

Another reason assigned is, that the party to whose execution he is a witness is considered as invoking him as the person to prove what passed at the time of the attestation. Cussons v. Skinner, 11 M. & W. 168.

In Hollenback v. Fleming, 6 Hill 303, it is said that the subscribing witness must be called, because he may state the time of the execution, and other material facts which may not be within the knowledge of any other witness.

The reasons given for the rule seem to be for the benefit of the obligor, or, in this case, the covenantor. The lessor and lessee were both present in court, and were willing to waive any right as to the presence of the witness. Besides, the lessor, who was plaintiff in the suit of ejectment, was a competent witness, and he, together with the lessee, must have known every material fact relative to the execution of the lease. A denial to the parties to a contract, under the circumstances, of the right to admit its execution, would be entirely captious.

The judgment is reversed upon the cross errors, and the costs are directed to be taxed against appellant, and the cause is remanded.

Judgment reversed.