The verdict is set aside and a new trial granted in this case, because of the admission of the testimony of Hobbs, who was called as an attesting witness to the mortgage made by Monroe and others to the plaintiff, that immediately after the signature by Monroe and before the parties separated, Monroe said to the plaintiff, “ I have a perfect right to sell or swap horses,” (that is, the horses mortgaged,) and the plaintiff said, “ You have.” As evidence affecting the construction of the written contract, the testimony would be, it is plain, immaterial and incompetent. That was a question of law to be settled by the language of the contract itself. The mortgage, it is clear, confers no such power. As evidence to show an alteration of the written contract by paroi, or a waiver of its provisions, it was incompetent, because it was contemporaneous with the written contract. It was not an alteration of the written contract by a subsequent new oral agreement between the par*42ties. It was a declaration of the parties as to the contract and its meaning and effect, which was inconsistent with the contract itself made at the time of its execution. The evidence did not therefore fall within the rule stated by the learned judge in his charge to the jury. The other exceptions are overruled.
New trial in the court of common pleas.
The new trial was had at September term 1858, before Sanger, J. The plaintiff called Lawton, one of the attesting witnesses, who testified that he signed his name to the mortgage in the office of the mortgagors’ stable ; that he thought that he did not see either of the mortgagors sign, and could not say that either of the mortgagors saw him sign; that the plaintiff, and Brickett and Monroe, two of the mortgagors, were present, but that he did not recollect that Faxon, the other mortgagor, was there. The plaintiff did not call Hobbs, the other attesting witness, but alleged and offered evidence tending to prove that he was out of the Commonwealth. The defendants had taken the deposition of Hobbs in the State of New York, by-commission, under which the plaintiff had put cross-interrogatories, but none respecting the execution and delivery of the mortgage; and that deposition was duly returned and filed and used by the defendants in the case. No evidence was offered of the handwriting of Hobbs. The plaintiff was then allowed by the court, against the defendants’ objections, to call Faxon as a witness to the handwriting of himself and the other mortgagors, and, after Faxon had testified that he signed the mortgage and that the signatures of the other mortgagors were in their handwriting, to read the mortgage to the jury.
The mortgage was dated April 23d 1853, and purported to be given to secure promissory notes “ bearing even date herewith.” The plaintiff produced three notes, dated April 23d 1852, but conforming to the description in the mortgage in all other respects; and offered oral evidence tending to prove that these were the notes intended to be secured by the mortgage. The defendants objected; but the court admitted the evidence.
The mortgage described the property as subject to a former *43mortgage to Charles L. Mathes ; and that mortgage, which did not specifically mention the horse in question, had been assigned by Mathes to the plaintiff for a valuable consideration, before this action was brdught. The court, against the defendants’ objection, permitted the plaintiff to give that mortgage in evidence.
The plaintiff, against the defendants’ objection, was permitted to testify to the contents of a written paper executed and delivered by the defendants to him just before this action was brought, and for the .admission of secondary evidence of which a proper foundation had been laid; although he did not state that he recollected the whole, or the substance, of its contents; and testified that “ the substance of the paper was that the defendants should give up the horse to him in sixty days, or pay him for it.”
The defendants, for the purpose of disproving the plaintiff’s title, offered to prove that they were the owners of the horse at the time of the commencement of the action. But the court ruled that such evidence was not admissible under their answer.
The jury returned a verdict for the plaintiff, and the defendants alleged exceptions, which were argued at this term.
Clarke, for the defendants.
J. M. Keith, for the plaintiff.
Bigelow, J.1. The testimony of Faxon, one of the mortgagors, to the genuineness of his own signature and those of the other mortgagors, was, under the circumstances proved at the trial, clearly competent. One of the subscribing witnesses had already been called and testified. It was proved that the other was absent from the Commonwealth. This fact was sufficient reason for not producing his testimony, and rendered other evidence of the execution of the mortgage admissible. This point was distinctly adjudicated in Valentine v. Piper, 22 Pick. 90 Nor did it affect the competency of this evidence, that the adverse party had taken the evidence of the other subscribing witness by commission in another state, and that he had been cross-examined by the plaintiff’s counsel under written interrogatories appended to the commission. A party is not bound to send original documents out of the Commonwealth to be proved by *44subscribing witnesses. The risk that they may be lost, obliterated or mutilated in the course of transmission is one of the main reasons on which the exception to the rule dispensing with the testimony of attesting witnesses who are out of the State is founded.
2. It was competent to offer evidence to identify the notes produced with those which the mortgage was intended to secure. The rule of law is well settled, that when an instrument, which is offered to prove the subject matter described, differs in one or more particulars from the description, evidence is admissible to prove their identity, notwithstanding the discrepancy. Such evidence does not vary or alter the written contract, but only serves to identify and apply it to the subject matter to which it relates. Johns v. Church, 12 Pick. 557. Hall v. Tufts, 18 Pick. 455. Pierce v. Parker, 4 Met. 84. Bourne v. Littlefield, 29 Maine, 302.
3. The mortgage to Mathes was properly admitted. As the mortgage tinder which the plaintiff claimed title to the horse in controversy expressly referred to this prior mortgage, and was made subject to the lien or incumbrance thereby created, this mortgage in effect made part of the plaintiff’s written title. Although apparently immaterial, it was not absolutely irrelevant, and its introduction could in no way have prejudiced the defendants’ case.
4. We can see no objection to the competency of the oral evidence of the contents of the written paper which was lost or destroyed. It came within the ordinary rule by which secondary evidence is held to be admissible. The witness did not testify that he did not state the substance of the whole paper. If he omitted any essential part of it, it was competent for the other side to supply such omission by paroi evidence.
5. The rejection of evidence that the defendants were owners of the horse at the time of the commencement of the action was immaterial to the real issue before the jury. The whole case turned on the validity of the plaintiff’s mortgage, which was prior in point of time to any title set up by the defendants. This title the defendants did not seek to impeach by the evi*45dence which they offered of title in themselves at the date of the writ. The prior mortgage being established, the right of the plaintiff to recover could not be affected by any subsequent title acquired by the defendants. Exceptions overruled.