#### Clements & Co. v. Eason & Wright.

This was an action of covenant, brought upon an instrument executed by two, and appearing to be under seal, but not attested by any subscribing witness. There was no witness to the execution, but proof was offered by *24tjie Plaintiff, of an aeknowledgment by one of the co> venantors that the instrument was executed by both : which Judge Spencer would not admit, and no other evidence being; offered, the. Plaintiff was ordered to be nonsuited; the Court saying, he ought to have brought his action on the case, an ! proof that the instrument was acknowledged, is no proof of the sealing, and will not make it to be a deed.

Note — The case of Ingham v. Hall, overrules the objection that case, and not covenant or debt, is the proper action upon an unattested sealed instrument. Post 193. The other objection would now be equally untenable, it is a rule well established, that the subscribing witness to a deed or other sealed instrument, must be produced to prove its execution. Ormichund v. Barker, 1 Atkins, 49. Abbot v. Plumbe. 1 Dong. 216. This rule is never departed from, except the witness is dead, not to be found after diligent enquiry, removed bevond the process of the Court, become infamous, or interested by operation of law. Adam and Wife v. Kers, 1 Bos. Pul. 360. Cogian v Williamson, 1 Doug. 93. Prince v. Blackburn, 2 East. 250. Jones v. Mason. 2 Strange 833 Cunliffe v. Sefton, 2 East. 183. Nelius V. Brickell’s adm’r. post 19. Jones v Brinkley, post 20 Johnston v. Knight, 1. Murph. 293. Selby v. Clark, 4 Hawks, 265. Nearly all the cases concur, under these circumstances, in requiring proof of the witness’s hand writing, and from the case of Milward v. Temple, 1 Camp. N.P.Rep. 375, it would seem that the proof of his hand-writing would be sufficient, without proving the hand-writing of the obligor. In the State of N. York, it has been exoressly so adjudged. Mott v. Doughty, 1 John. Ca. 230. Sluby v. Champlin, 4 John. 61. Where there is a subscribing witness, it has been expressly decided, that the acknowledgment uf the obligor is not sufficient proof of the execution of the bond. Abbot v. Plumbe and Cunliffe v. Sefton, cited above. Call v. Dunning, 4 East. 53. Johnston v. Knight, 2 Murph. 237. Where the. subscribing witness is dead, and his hand-writing cannot be proved, proof of the obligor’s hand-writing will be admitted. Jones’ adm’rs. v. Blount’s ex’rs. 1 Hay. 238. f there be no subscribing witness, or if the name of .ill. subscribing witness can be shown to be in the handwriting of the obligor, or if the subscribing witness, upon being-called, cannot prove the execution of the bo id, other evidence may be received, as of the obligor’s band-writing or his acknowledgment of the instrument. Ingham v. Hall, cited above. Allen v. Martin, 1 Car. Law Repos 93. Holloway v. Lawrence, 1 Hawks, 49. Where a subscribing witness leaves the State in t ir exercise of a public duty, (as m the case of a member of Congress) bis hand-writing may bo prov-d. Selby v. Clark, 4 Hawks, 265. See also 1 Philips on Evidence, 419, 420. (3 Am. Ed.)