This action was brought upon an instrument containing an. alternative .covenant. If the defendant below ever obtained title'to the lands referred to he was bound to convey to Clark. If he sold his interest before obtaining such title, he was bound to take from the purchaser a like bond for Clark’s benefit. The latter branch of this covenant was that alone in relation- to which there was an alleged breach. In the nature of things both could not be broken. The-breach of either was sufficient to enable the plaintiff below to sustain his action,, and the declaration therefore in this respect was sufficient.

The main point in the case however is, that in relation to- the date of the bond purporting to have been taken by Meldrum from the person-to whom he sold, performance has been pleaded, and to sustain this plea, a bond was offered in evidence dated anterior to the commencement of the suit. If Meldrum had sold' the- claim prior to the bringing of the suit, and if the bond taken from the vendee was not executed until afterwards. it would be no defence to the action whatever. The time of the execution of that bond therefore becomes a material fact. And how was that fact proposed to be proved ? By the date of the instrument itself, to which Clark was neither party nor privy.

There is no doubt but that as between the parties to an instrument the date raises a legal presumption of the time of its execution. It amounts to a mutual admission in such a shape as to become legal testimony. But to permit the defendant and a third person to make evidence between themselves that shall bind the plaintiff without his consent or *15knowledge would be overthrowing one oP the fundamental and most salutary rules of evidence.

Suppose the bond had been without date, and that subsequently the parties thereto had under their hands and seals exocutsd a separate instrument deàlaring the hond to have been executed on a particular day3 would this have been `epmpetent testiinçny against Clark? if such evidence be admisssible, why might not all the evidence in the aase be manufactured in the same manner. We can see no reason why a differs ent rule should be applied ih this case, from that which is followed i~ the ptoof of any other matëriid fact.

We have no doubt therefore of the correctness of the position that where an instrument e~cecuted by a third persoh to the defendant is brought in to defeat the plaintiiTh action, and the time of its execution becomes a material fact in the case, the mere date is no evidence of that time. If objected to therefore, the bond taken by .Mèldrum should not have been received in evidence at all until proved to have been executed prior to the commencement of the suit. Having been admitted, the charge of the court was substantially correct. We must understand that charge as applied to the facts of this case, and the import of the language to be somewhat qualified by the other cireulñstances stated in the bill of exceptions.

It was objected by the defendant in error that there sh9uld have been a tender by Meldrum to Clark, and also that the bond should have been taken directly to Clark, but these points need not now be considered, as they could not change the result.

The judgment of the Court below will therefore be affirmed. -