
    January, assignee, v. Goodman.
    
      Specialty. — Evidence.
    An instrument, by which the defendant promised and obliged himself and his heirs to pay to the pla ntifE and his assigns, concluding with the words, “ as witness my hand and seal,” and actually sealed, is a specialty, and cannot ■ be given in evidence to support an action of assumpsit.
    
    Where there are subscribing witnesses to an instrument, whether sealed or not, they must be produced or accounted for, before the handwriting of the maker can be proved.
    The President, after argument and consideration, delivered the judgment of the court in this cause, upon a point reserved at the trial.
   Shippbn, P. J.

This is an action on the case, brought upon a writing said to be a promissory note, and declared upon as such. The form of it is not the usual form of a promissory note; it runs thus : “ I promise and oblige myself and my heirs to pay to January and his assigns,” it concludes with the words “ as witness my hand and seal; and it is actually sealed. Two witnesses subscribe, under the words, given in presence of us.”

On the trial, the subscribing witnesses were not called, nor any evidence given of their death or absence ; but evidence was offered of the handwriting of the defendant who subscribed the instrument, whioh was permitted to be given in evidence, on .reserving the point.

In this case, two questions arise ; one regards the nature of the instrument ; the other, the sufficiency of the evidence.

1. If the instrument is a specialty, then it ought not to have been given in evidence, in an action of assumpsit on a promissory note. This general doctrine is not denied ; but, it is said, it is not to be considered as a specialty or deed, unless proof be made of its having been sealed and delivered as a deed ; and that no such proof appearing, the plaintiff had a right to consider it as a note of hand. That a deed cannot be regularly proved, but by proving the sealing and delivery, there can be no doubt; as if non est factum be pleaded to a bond, the plaintiff must prove the sealing and delivery — this proof lies %tpon him. But, in the present case, the proof of the execution of the instrument as a deed, is attempted to be put upon the person against whom it is produced. The plaintiff produces an obligation to support an action on a note — shall he say, against his own showing, that unless you, the defendant, prove this to have been sealed and delivered, it is no obligation, and I may consider it as a note ? The plaintiff himself will not prove it, and the defendant cannot. The instrument produced has the formal words of an obligation ; it binds the party and his heirs to pay to another and his assigns. . The words, “ as witness my hand and seal,” show the intended nature of the instrument, and it actually appears with a seal; this denominates it a specialty.’ The definition of a specialty is thus given in 2 Black. Com. 465 : “ Debts by specialty are such whereby a sum of money becomes oris acknowledged to be due by an instrument under seal." That this is an instrument under *seal, acknowledging a debt to be due, appears by [-*209 inspection. If it be objected, that this seal might be put to it by a *■ stranger, the side who alleges that, ought to prove it, especially, if it be that side who has possession of the paper.

Should this attempt succeed, all legal distinctions between specialties and other writings, would be confounded and destroyed, at the will of the person producing them; and the wise provisions of the law to guard debtors against being twice called upon for the same debt, would fall to the ground; especially, in the cases of assignable instruments.

2. If this were to be considered not as a specialty, but a note, then the second question would arise, whether being attested by subscribing witnesses, those witnesses ought not to be produced, or some account given of them. Px-omissory notes are not usually attested by subscribing witnesses, and therefore, the ordinary mode of proving them is by witnesses to the handwiiting ; but if the parties will have subscribing witnesses, in what respect, and upon what grounds, can the distinction be drawn between the proof necessary in the case of notes and bonds ? The i-ule of law as to the best evidence which the law requires, is, that no such evidence shall be admitted, which, ex natwrd rei, supposes still greater evidence behind, in the party’s own possession or power. This rule applies equally to the withholding the best px-oof of the signature of a note, as of the sealing and delivery of a bond. If a note is not witnessed, it does xiot appear that any third person saw it signed, in xvhich case, the best exddence is the handAvriting of the party ; but, if it be witnessed, then it appears, on the face of the note, that there is better evidence behind ; and the best evidence that the nature of the case admits of, the law requires.

As no solid distinction between the case of bonds and notes can be shown, upon principle, so none appears from the authorities. Instrumental witnesses appear, by the cases, to be always called upon, and ax-e equally necessary to prove those writings which are not under seal, as those that are ; and the case in 2 Str. 1149 (Bevis v. Lindsel), which x-espects the proof of promissory notes before a jury of inquiry, is decisive.

On the whole, therefore, we are of opinion, that the law is with the defendant, upoix both points, and there must be a new trial, or the plaintiff may take a nonsuit, at his election. 
      
      
         See Taylor v. Glaser, 2 S. & R. 504. In Charles v. Scott, 1 S. & R. 294, it was held, that an agreement under seal, received as collateral security for a simple contract debt, may be given in evidence, in assumpsit on the original contract, to show the amount due.
      
     
      
       s. p. Heckert v. Haine, 6 Binn. 16; Wishert v. Downey, 15 S. & R. 77. And even if the paper he lost, the subscribing witness, if there be one, must be produced or accounted for. McMahon v. McGrady, 5 S. & R. 314.
      
     
      
       Where an instrument in the form of a promissory note is signed by three, and a seal is affixed to the signature of one of them, a joint action of assumpsit will not lie against the three. Biery v. Haines, 5 Whart. 563. And assumpsit cannot be maintained on an instrument under seal, signed by one only, but containing no agreement to bind the other. Norris v. Maitland, 9 Phila. 7. So, assumpsit will not lie on a memorandum fixing the amount due on an agreement under seal; the plaintiff must sue on the contract. Harley v. Perry, 18 Penn. St. 44. Where, however, a sealed instrument is executed by only one of the parties, the other may maintain assumpsit, on proof of performance. McGunigal v. Mong, 5 Penn. St. 269. And assumpsit lies upon a contract under seal, which has been so far modified by parol, as to amount to an abandonment of the original contract. McGrann v. North Lebanon Railroad Co., 29 Penn. St. 82; Lawall v. Rader, 24 Ibid. 283; Spangler v. Spangler, 24 Ibid. 454; Carrier v. Dilworth, 69 Ibid. 406. But unless the original contract be expressly abandoned, or so altered by parol as to make it a new contract, covenant is the only remedy for a breach. McManus v. Cassidy, 66 Penn. St 260; Shaeffer v. Geisenberg, 47 Ibid. 500.
     
      
       This is the general rule. Tams v. Hitner, 9 Penn. St. 441; Bura v. Thompson, 2 Clark 143. But there are exceptions to it: thus, the admission of the maker of a promissory note that he signed it, is sufficient proof thereof, without calling a subscribing witness. Williams v. Floyd, 11 Penn. St. 499. So, where the action is not founded on the deed, the grantor may prove its execution, without calling the subscribing witnesses. Mix v. Smith, 7 Penn. St. 75; Wright v. Wood, 23 Ibid. 120. So also, in case of an ancient deed. Everley v. Stoner, 2 Yeates 122. And where a subscribing witness subsequently becomes interested, by his own voluntary act; in such case, his handwriting may be proved. Hamilton v. Marsden, 6 Binn. 45.
     