Page:United States Reports, Volume 1.djvu/220

Rh 

1787.

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 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. Rh