#### The executors of Daniel Newbold, deceased, *against*Joseph Lamb.

*On rule to shew cause why a new trial should not be granted.*

not, in the body of it, say that it ^ Proof of the of subscribing witness, is not sumcient to send to the Íiavínginkscroll for a whlch'does wassealed, (a)

THIS was an action of debt, originally brought in the Common Pleas of *Burlington*county, and removed by *habeas corpus*into the Supreme Court, ^ -*■

The plaintiffs declared against the defendant on a sealed kill, and made profert of the same.

The defendant prayed oyer, and after setting out the instrument, pleaded *non est factum.*

. Upon the issue thus joined between the parties, the cause came on for trial at the *Burlington*circuit, in *November*1817. The plaintiffs after proving the death of *William Coate,*the subscribing witness to the following paper writing, and proving the handwriting of the said *William Coate,*offered in evidence, the bill of which oyer had been given, in the following words, viz:

“ For value received, I promise to pay *Daniel Newbold*or order, on or before the first day of *May*next, one hundred and seventy dollars, with interest. *April*the first, one thousand eight hundred and six.

Witness present, *Jos. Lamb.*(scroll.)

*William Coate.”*

*To this instrument, the defendant objected, until some proof was offered to shew that it had been sealed and delivered, and contended that it was, without such proof, inadmissible on the issue joined, and insufficient to sustain it on the part of the plaintiffs. His honour, Judge *Rossell,*overruled the objections. No other evidence was offered, either by the plaintiffs or defendant; and the jury found a verdict for the plaintiffs, for three hundred and seven dollars, and ninety-three cents.

The case was not argued, but *Coxe*for the defendant

*517referred the court to, 1 *Shep. Touch.*54-6-7. *Coke Lit.*6 *a.*35 *b.*13 *Viner*20. title *faits*let. *H.*9. *Bro. Plea.*113. tit. *fait. Peake. Ev.*100. 5 *John.*245. 1 *Wash.*170. 1 *Mun.*487.

*Ewing*for plaintiff,

referred the court to, *Swift Ev.*26. *Phil.*362. 1 *John.*230. 12 *Mod.*607.

(a)

 See *Hogland, vs. Sebring, ante 105. Force vs. Craig, 2 Hal. 272. Corlies vs. Van Note, 1 Har. 329. Hopewell vs. Amwell, 1 Hal. 176. Curtis vs. Hall, 1 South. 148. Perrine vs. Cheeseman, 6 Hal. 174.*Acts of 1875, p. 56.

The Chief Justice delivered the opinion of the court.

Kirkpatrick C. J.

This is an action of debt upon a sealed bill, in these words, to wit. “ For value received, I promise to pay *Daniel Newbold*or order, on or before the first day of *May*next, one hundred and seventy-five dollars, with interest. *April*the first, one thousand eight hundred and six.

Witness present, *Jos. Lamb.*(scroll.)

*William Coate.”*

Upon the trial the plaintiff proved the death and handwriting of the said *William Coate,*the subscribing witness, and then offered his bill in evidence, *(a)***To this it was objected by the defendant, unless some proof should be offered to shew that the said bill had been sealed and delivered ; but the objection was overruled, and a verdict rendered for the plaintiff. Upon the coming in of the *postea,*the defendant took a rule to shew cause, &c. And the case was submitted without argument.

The objection could not be to the scroll or the ink-seal, for the statute is positive, “That any instrument for the payment of money, to which the person making the same, shall affix a scroll, or ink, or other device, by way of seal, shall be taken and adjudged to be of the same force and obligation as if it were actually sealed with wax.” Neither can it be to the mode of proof, for it has so many times been determined, and has become a *principle so well settled, that proof of the death and hand-writing of a subscribing witness to a deed, is sufficient to pass the *518deed to the consideration of the jury, that it cannot now ■be questioned. Were it otherwise, a bill or bond, or other obligation under seal would be a very uncertain security indeed; for as lord *Golee*hath observed upon this subject, no man can keep his witnesses alive, and time weareth out all men.

The objection then, must rest upon the form of the attestation, if I may so call it, or the *his testibus*clause, which does not express, as is usual, that the instrument was sealed and delivered in the presence of the witness. The only reason why the proof of the hand-writing of the subscribing witness is taken as sufficient proof of the execution of a deed, is founded upon the presumption that what an honest man hath attested under his hand, is true; that when he says the instrument was sealed and delivered in his presence, the presumption is, that it was so sealed and delivered. But when the instrument itself does not in the body of it, purport to be a sealed instrument, when it is not in the form of a bill, bond or other obligation usually under seal, and when the attestation says nothing about sealing and delivery, this presumption fails. This instrument does not purport to be sealed, the witness has not said that it was sealed and delivered in his presence ; there is nothing in the whol,e writing, importing any such thing. The scroll may have been made after the attestation as well as before, and indeed, judging from the face of the instrument only, the probability is so, for the attestation is not according to the usual form, the common practice of men in similar cases, but wholly different from it. *(a)***Can we then make this dead man say what he never did say when he was living; can we make him prove now that he is dead, what perhaps he could not prove if he were here present in court ? I think not.

It is of high importance to keep up the distinction between instruments sealed, and not sealed; they are different in their nature and in their effects, and before they can with safety be confounded together, our whole system of law must be new modeled. Indeed, it may with safety be said, that the statute itself, upon this subject, is *519a dangerous innovation upon the settled principles of our law, without an adequate object. Though I have great reluctance to impede the recovery of money, where it is justly due, yet I cannot think it justifiable to break down geu*eral principles, to accommodate particular cases, and therefore am of opinion, that

The *postea*must be delivered to the defendant.

Southakt) J.

My view of this question, differs somewhat- from that of the rest of the court. When a subscribing witness is dead or absent, it is proper to prove his hand-writing, and proof of his hand-writing is *prima facie*proof of every thing which appears on the face of the instrument, sufficient to put the other party on his defence, *(a)***When, therefore, the proof of *Coate’s*handwriting was made, I think the bill ought to have been submitted to the jury, for them to determine whether the seal was upon it when it was executed; and the court ought carefully to have instructed the jury, that, in this action, proof of the seal was a necessary part of the plaintiff's case; and that unless they were satisfied, from the evidence, that the bill wras sealed when it was Executed, and had not since been altered, they ought to find for the defendant.

Rule for new trial granted.

(a)

*Patterson vs. Tucker, 4 Hal. 332. Boylan ads. Meeker, 4 Dutch. 294. Van Doren vs. Van Doren, Pen. *1022. Reformed Church vs. Ten Eyck, 1 Dutch. 40. Servis vs. Nelson, 1 McC. 94.*

(a)

*Force vs. Craig, 2 Hal. 272.*

(a)

*Den vs. Van Houten, 5 Hal. 270. Kingwood vs.*Bethlehem, *1 Gr. 222.*