Sherwood v. Pratt

By the Court, James C. Smith, J.

An instrument, purporting to be attested by a subscribing witness, may be proved as if there were no subscribing witness, where the person who has put his name as attesting witness, did so without the knowledge or consent of the parties. (2 Phil, on Ev., 4 Am. ed., with notes, 499, 503. 2 Wait’s Law and Pr. 431.) In the present case, the plaintiff’s counsel offered to prove that the chattel mortgage produced by him at the trial, was signed by the subscribing witness without the knowledge or request of either of the-parties to the mortgage. When he made ¿he offer, he conceded that the mortgage was so subscribed by the witness, at the time of its execution. The case states that the offer was objected to on two grounds : (1.) That having been subscribed by the witness at the time of the execution of the mortgage, it was deemed to have been adopted by the parties. (2.) That it would be an alteration or contradiction of the instrument, and, in effect, striking out the name of the subscribing witness. In sustaining the objection, the referee, I think, fell into an error. The .objection rests, mainly, on the fact that the witness subscribed the mortgage at the time of its execution. But that fact is of no moment, if it be true, as the plaintiff offered to show, that the witness so subscribed without the knowledge of either of the parties. To hold otherwise, would be to treat the signature of the witness as conclusive upon the parties; whereas it is only prima facie evidence that the witness was called in by them, and the presumption arising from it may be contradicted. And for that purpose parol testimony may be used, since the object of the proof is not to contradict or vary the written agreement, but merely to show that its execution was not attested in a particular way.

[Monroe General Term, December 7, 1868.

There should be a new trial, and as the present referee is the subscribing witness, and his testimony will probably be needed on the trial, another referee should be appointed in his place.

E. Darwin Smith, Johnson and J. G. Smith, Justices.]