JANUARY Aʃʃignee verʃus GOODMAN.
T
HEpresident, after argument and confideration, delivered the judgment of the Court in this caufe, upon a point referved at the trail.SHIPPEN,Preʃident.– This is an action on the cafe, brought upon a writing faid to be a promiffory note, and declared upon as fuch. The form of it is not the ufual form of a promiffory note ; it runs thus ; “ I promife and oblige myfelf and my heirs to pay to January and his Affigns,” it concludes with the words “as witnefs my hand and feal;” and it is actually fealed. Two witneffes fubfcribe under the words “ given in prefence of us.”
On the trial, the fubfcribing witneffes were not called, not any evidence given of their death, or abfence ; but evidence was offered of the hand writing of the Defendant, who fubfcribed the inftrument, which was permitted to be given in evidence, on referving the poing.
In this cafe two queftions arife ; one regards the Nature oƒ the Inʃtrument ; the other the Suƒƒiciency oƒ the Evidence.
1. If he inftrument is a Speciality, then it ought not to have been given in evidence, in an action of Aʃʃumpʃit, on a promiffory note. This general doctrine is not denied ; but, it is faid, it is not to be confidered as a fpeciality, or deed, unlefs proof be made of its having been fealed and delivered as a deed ; and that no fuch proof appearing, the Plaintiff had a right to confider it as a note of hand. That a deed cannot be regularly proved but by proving the fealing and delivery, there can be no doubt ; as if non eʃt ƒactum be pleaded to a Bond, the plaintiff muft prove the fealing and delivery,–this proof lies upon him. But, in the prefent cafe, the proof of the execution of the inftrument as a deed, is attempted to put upon the perfon againʃt whom it is produced. The plaintiff produceds an obligation to fupport an action on a Note– fhall he fay againʃt his own ʃhewing, that unlefs you, the Defendant, prove this to have been fealed and delivered, it is no Obligations, and I may confider it as a Note? The Plaintiff himfelf will not prove it, and the Defendant cannot.–The Inftrument produced has the formal words of an Obligation; it binds the party and his heirs to pay to another and his aʃʃigns–The words, “ as witnefs my Hand and Seal,” fhew the intended nature of the Inftrument, and it actually appears with a Seal; this dominates it a Specialty. The definition of a fpecialty in thus given in 2 Black. Com. 465. “ Debts by fpecialty are fuch whereby a fum of money becomes or is acknowledged to be due by an inftrument under ʃeal.” That this is an Inftrument under
feal, acknowledging a debt to be due, appears by infpection. If it be objected, that this feal might be put to it by a ftranger, the fide who alledges that, ought to prove it, efpecially if it be that fide who has poffeffion of the paper.
Should this attempt fucceed, all legal diftinctions, between fpecialites and other writings, would be cofounded and deftroyed at the will of the perfon producing them ; and the wife provifions of the law to guard debtors againft being twice called upon for the fame debt, would fall to the ground, efpecially in the cafes of affignable inftruments.
2. If this were to be confidered (illegible text)Specialty, but a Note, then the fecond queftion would arife, whether being attefted by fufcribing witneffes, thofe witneffes ought not to be produced, or fome account given of them. Promiffory Notes are not ufually attefted by fubfcribing witneffess, and, therefore, the ordinary mode of proving them is by witneffes, in what refpect, and upon what grounds, can the diftinction be drawn between the proof neceffary in the cafe of notes and bonds? The rule of law as to the beft evidence, which the law requires, is, that no fuch evidence fhall be admitted which, ex natura rei, fuppofes ftill greater evidence behind in the party's own poffeffion, or power. This rule applies equally to the withholding the beft proof of the ʃignature oƒ a Note, as of the fealing and delivery of a bond. If a note is not witneffed, it does not appear that any third perfon faw it figned, in which cafe, the beft evidence is the handwriting of the party ; but, if it be witneffed, then it appears, on the face of the note, that there is better evidence behind ; and the beft evidence that the nature of the cafe admits of, the law requires.
As no folid diftinction between the cafe of bonds and notes can be fhewn upon principle, fo none appears from the authorities. Inftrumental witneffes appear by the cafes to be always called upon, and are equally neceffary to prove thofe writings which are not under feal, as thofe that are ; and the cafe in 2 Stra. 1149, which refpects the proof of promiffory notes before a jury of enquiry, is decifive.
On the whole, therefore, we are of opinion, that the law is with the Defendant upon both points, and there muft be a new trial or the Plaintiff may take a non fuit at his election.