Story v. Lovett , 1 E.D. Smith 153 ( 1851 )

By the Court. Woodruff, J.

The rule that the execution of an instrument must be proved by the subscribing witness, if there be one, living, competent to testify, and within the jurisdiction of the court, is inflexible. The adverse party has an undeniable right to require him who offers the instrument in evidence, to call the person who was chosen to attest the fact of the execution, that he may, by cross examination, elicit all the attending circumstances. The oath of the grantor, obligor or mortgagor, cannot be substituted. (Hollenback v. Fleming, 6 Hill, 303 ; Henry v. Bishop, 2 Wend. 575 ; 2 Greenl. Ev. § 569.)

It would not be difficult to assign other reasons why the plaintiff was not entitled to recover on the case exhibited at the trial, but the above is a sufficient reason for reversing the judgment.

The judgment must be reversed.