
    Zerby v. Wilson.
    Subscribing witness to written agreement can not be dispensed with and confessions of the party substituted.
    This was an action of assumpsit, founded upon a written agreement. At the trial, before the Supreme Court of Richland county, the plaintiff offered the written agreement in evidence, and to prove its execution, offered parol evidence of the confession of the defendant that he had executed it. There was a subscribing witness to the agreement, but he was not called nor his absence accounted for. The court rejected the evidence, and a verdict passed for the defendant. The plaintiff moved for a new trial, on the ground of error in rejecting the testimony, and the decision of the motion was adjourned here.
    H. B. Curtis, for plaintiff,
    cited Hall v. Phelps, 4 Johns. 451, as in point that the evidence was admissible.
    Purdy, for defendant:
    It is an old and well-established rule of evidence, that the subscribing witness to an attested instrument, whether under seal or not, should be produced to prove its execution, or his absence should be accounted for, to pave the way for introducing other evidence. The parties themselves, by selecting him as the witness, mutually agreed to rest upon his testimony in proof of the execution of the instrument, and of *the circumstances which then took place. And the law, with good reason, presumes that he possesses a knowledge of facts which are probably unknown to others. He is, therefore, considered the best evidence. 1 Starkie’s Ev. 330; 1 Phillips’ Ev. 356; Rex v. Jones, East P. C. 822; Gray v. Smythes et al., Burr, 1173; 4 Maul. & Selw. 359.
    This rule is so strictly adhered to, that even an admission by the defendant, in an answer t,o a.bill filed against him for discovery, will not dispense with the testimony of the subscribing witness. Call v. Durming, 4 East, 53. The first attempt Ifind among the adjudged cases, to dispense with the production of the subscribing witness, and introduce the confession of the defendant in lieu thereof, is the case of Abbot v. Plumbe, Douglas, 216. On the trial, Lord Mansfield permitted the evidence of the defendant’s confession to go to the jury; but, on motion, the verdict, for that reason, was set aside, and the .plaintiff nonsuited, Lord Mansfield coinciding with the other judges. This question has subsequently arisen in several instances, in Westminster Hall, and has been uniformly decided in the -same way. 7 Term, 267; 2 East, 187; Johnson v. Mason, Esp. C. 89; Laing v. Raine, 2 Bos. & Pul. 85; Jones v. Brown, 4 Taunt. 46. The same rule as uniformly prevails in the courts of this country. Clement & Co. v. Eason et. al., 1 Hayw. 18; Johnson v. Knight, 1 Can. Law Rep. 93, acc; Pearl v. Allen, 1 Tyler, 4; 1 Dallas, 208. These numerous cases show that the question has frequently arisen, and this uniformity of decision establishes the rule too firmly to be shaken,
    The rule of law, as to the best.evidence, etc., is, that no evidence shall be admitted which, ex natura rei, supposes still greater evidence behind in the party’s power. This rule, as well as the reason of it, applies as well to unsealed as to sealed instruments. In the case of January v. Goodman, 1 Dal. 308, the court, respecting this rule, observes, “As no solid distinction between bonds and notes can be shown, upon principle, so none appears from the authorities."
    
    The case of Hall v. Phelps, cited and relied upon by the plaintiff’s counsel, presents the only exception to this rule. This single case should not disturb a well-settled rule of law, especially when it appears to be predicated on a distinction between sealed and unsealed instruments, which is not founded *in reason. But the case at bar differs materially from the case of Hall v. Phelps. That was a promissory note, which by that court is considered a parol contract, and in an action between the original parties, in many respects treated as such. Besides, it might have been given in evidence under the common counts, and the court appears to give great weight to the fact, that the defendant acknowledged his indebtedness. Not so in. this caso. The instrument is a special article of agreement, containing mutual engagements, and declared upon specially. If a seal were affixed, it could have no effect upon the construction of the instrument, or the introduction of parol evidence. If in this case the confession of the party can be given in evidence, and the production of the attesting witness be dispensed with, there can be no reason, from principle, to require his production in any other. This would be extending the rule beyond the case cited, and further than the court in New York has done. On sealed instruments that court still requires the production of the attesting witness. 3 Johns. 477.
    Curtis, in reply:
    It is true, that the rule requiring the production of the subscribing witnesses is an old one; but it has never acquired strength from time. On the contrary, we find that it has continually yielded to more enlightened and liberal jurisprudence. It was formerly doubted, whether, if the subscribing witness deny the deed, we could call other witnesses to prove it. This absurdity was at length laid by ; but still it was held, that in case of the absence or death of the subscribing witness, proof of his handwriting must be produced. 7 Term, 266. This, too, was soon found to be unsuited to the daily transactions of life. As written agreements and contracts became more common, there was nothing more frequent than for individuals contracting to call upon strangers, waiters, etc., to attest the execution of their contracts. Witnesses whose names they probably did not know, and whose persons they would, probably, never again see; thereby placing themselves in the situation, that they would bo unable, either to produce the subscribing witness, or prove his handwriting. To guard against this *evil, we find the rule further relaxed; Cunliffe v. Septon, 2 East, 183, where evidence of the handwriting of an absent subscribing witness to a bond was dispensed- with. And the counsel for defendant seems to' reserve it for the honor of New York first to take the distinction between sealed and unsealed instruments, and with regard to the latter, wholly dispense with the rule. This, however, is not strictly the case. The rule has never been applied, even in the English courts, as unhesitatingly in eases of unsealed instruments as in those of sealed. Nearly all the cases cited by the counsel for defendant have not only the objection of' being old, and in many respects contradicted by later authorities, but are generally cases on bonds and instruments under seal. Such is the case of Abbot v. Plumbe, upon which all the other cases cited seem to hang. In the case of Barnes v. Trompowsky, 7 Term, 165, on a charter party not under seal, the court did indeed require the production of the subscribing witness, or due diligence for that purpose, before they would admit evidence of the handwriting of defendant. The correctness of the rule, that the law requires the best evidence the nature of the case admits of, is not denied. But it is claimed, that in a case situated like the present, such was the evidence offered by the plaintiff. “As persons interested are utterly removed from being evidence, for want of integrity, so, on the other side, the voluntary confession of the party in interest, is reckoned the best evidence.”. Gilbert’s Ev. 137. The case of Cole v. Dunning, 4 East, 53, does not support the position for which it was cited. In that ease, the fact to bo proved was the execution of the bond; and the plaintiff attempted to do this, not by the voluntary confession of the defendant, but by an extorted answer to a bill of discovery, filed for that purpose, when, at the same time, there-was a subscribing witness to the bond, whose attendance had never been sought after.
    So far as I have examined the cases cited by defendant’s counsel, I find them distinguishable from the case at bar. The case in 1 Dal. 208, approaches nearest. This, however, was an action of assumpsit, brought upon a specialty. The instrument was offered in evidence, with proof of the defendant’s handwriting-, without calling upon the subscribing! ^witness, or showing his absence. Upon a. point reserved, the court decided that the action could not be sustained, in consequence of the instrument offered in evidence being under seal. The court then go further and say, if it were a promissory note, that the production of the subscribing witness was necessary, or some account given of him, to entitle the plaintiff to recover. But as the case was clearly not sustainable upon the first point, the further decision of the court should be considered as but dicta, and not of sufficient weight to overturn the latter and higher authority cited from Johnson’s Reports. That case, Hall v. Phelps, is directly in point, and strictly analogous to the present case. The authority of the New York Reports is of the highest rank in our country; and the authorities cited by defendant’s counsel are of older date, and not so strictly adhered to in our courts.
    The distinction attempted to be made between a promissory note, and an agreement not under seal, is not well taken. They are both denominated contracts by parol, and the rules of evidence concerning them are substantially the same. 1 Com. Con. 1; Rann v. Hughs, 7 Term, 350, n. a.
    
    Nor is the position tenable that an article of agreement not under seal is subject to the same rules of “ construction and evidence” aS an instrument under seal, for by the gentleman’s own showing, the courts of New York require the production of the attesting witnesses, in cases of sealed instruments; aliter in cases of instruments not under seal. 3 Johns. 471, cited by defendant’s counsel.
   By the Court :

The plaintiff relied upon a written contract, or lease in writing not under seal, as the foundation of his action. By his plea, the defendant put the fact of executing, or making the writing in issue, and the plaintiff to prove it, offered the confessions of the defendant in evidence, without calling the subscribing witness, or accounting for his omission to do it. The court overruled the evidence, and this motion is now made, upon the ground that in so overruling it, the court erred.

*No rule of evidence is better established than that which requires the subscribing witness to a written instrument to be produced when its execution is put in issue, and is to be tried. Or if he can not be produced, to show some legal reason why this is impracticable, as a foundation for the admission of secondary evidence. The plaintiff’s counsel rely upon the case of Hall v. Phelps, 2 Johns. 451, as establishing and sustaining a different doctrine. It is unnecessary to say how far we should be governed by that case as an authority, did we consider it full in point, because we do not so consider it. In a subsequent ease, decided in the same court, Fox v. Reil, 3 Johns. 477, the same question again came up, and the grounds of the first case, and the extent of the decision, are examined and explained in such manner as much to weaken its authority. Hall v. Phelps was a case upon a promissory note; Fox v. Reil was debt upon a bond. In the latter case, the confessions were rejected, and in giving the opinion of the court, Kent, Chief Justice, states distinctly, that he concurred in the decision in Hall v. Phelps, upon the ground that it was a case of commercial paper, and that the English rule was exceedingly inconvenient, when applied to that description of written obligations. He says he recollects no case where it was ever applied to a specialty.

The case before us is not a specialty, but it is not, nor does it bear any resemblance to commercial paper. It is a contract in relation to the realty; it conferred upon the lessee a qualified interest in land, and the solemnities of execution are in their nature as important as the execution of a bond for the payment of money, or of any specialty, short of a deed for the conveyance of land. It is a ease much more strongly assimilated to that of Fox v. Reil than that ot Hall V. Phelps, and we are of opinion that it falls within the rule of the latter case.' The evidence was properly rejected, and the motion for a new trial must be overruled.  