Page:United States Reports, Volume 1.djvu/219

208 

1787.

which was formerly exercifed by a fingle Judge, and it is their duty finally to acquit or condemn the fhip, as in their confciences they think ought to be done.

The Jury, after a fhort adjournment, returned a verdict in favour of the informants. 

HE 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