The contract in question was not subscribed, within the meaning of the 3d section of the statute of frauds. The word sign, primarily means any written authentication of a contract, by the person to be charged. Hence the inserting the name of the testator in the middle, or at the commencement of the will, was held a sufficient signature.
Judge Cowen remarks, in Davis v. Shields, (24 Wend. 327,) that the words signing and subscribing, when applied to a contract, or other instrument, always, in common understanding, meant the same thing, namely, writing one's name at the bottom.
This is true undoubtedly. Business men, when speaking of the signature to a note, mean an undersigning, and most men out of the legal profession, would consider a contract, with the contractor's name at the commencement instead of the close of the instrument, as unexecuted. The courts, in declaring that a signature might be in any part of the instrument, if the intention of the contractor was manifest, did not therefore depart from the primary signification of the word, but from the meaning in which it was generally accepted.
In the revision of the statutes, the legislature intended to substitute the popular meaning, for one adopted by judicial construction. They did this by a change of phraseology, in substituting "subscribed," which indicates the making of a particular kind of signature, for "signed," which applied to every species of written authentication. The supreme court, inDavis v. Shields, in adhering to the old construction, violated both the primary and popular meaning of the word "subscribe," and the clear intention of the legislature.
The revisers state, "that the courts, setting out with the "principle, that a literal signing was not necessary, found "themselves perfectly at large, as to what should be considered *Page 18 "a signing. To prevent difficulties of this sort hereafter, the "revisors propose that these agreements shall be `subscribed.'" (3 R.S. 655, in connection with 656.)
With this explanation before them, the legislature adopted the change of phraseology, and it is fairly to be presumed for the reason suggested by the revisers.
Notwithstanding this plain intimation of the legislature, the supreme court in Davis v. Shields, (24 Wend. 328,) came to the conclusion "that there was no greater judicial effort in enlarging "the term subscribed into a secondary sense," than had been made by their predecessors, upon the word sign. They therefore held that the law was not changed by the revision.
Their judgment was reviewed and reversed in the 26 Wendell, 347, by the court for the correction of errors.
Opinions were delivered by the chancellor and Senator Verplanck, in favor of reversal upon this precise point, which was the prominent one in both courts. Senator Paige was for affirmance, and in his opinion discussed no other question. Every other member of the court voted in accordance with the views expressed by the chancellor and Senator Verplanck.
We are now gravely informed that it was possible to reverse the judgment upon other grounds. The effect of any decision in a court composed of more than a single judge, might in this way be avoided. But when two questions are presented to the appellate court, upon which their decision is asked, both of which are discussed by counsel, and each is considered and determined in the only opinions read in the hearing of the members, the majority must be deemed to acquiesce in the conclusions upon those questions reached in those opinions, unless some one dissents. With a different rule, there could be no such thing as the establishment of a principle by the court of last resort, where more than a single point was presented.
The decision would not settle any thing as between the parties. The subordinate court might speculate, as they have in this case, upon the possibility that the decision might have been upon a single ground, although it professed to be upon all the *Page 19 questions; and as they could not say, with infallible certainty, which was the true one, they would not receive it as authority upon either. I do not doubt the intention of the legislature in changing the phraseology of the statute, at the time of the revision, or as to the effect of the decision in the court of errors upon the attestation.
Upon both grounds the judgment of the court should be reversed.
Judgment reversed.