Opinion of the Court.
This is an action of debt upon a sealed bill. It is brought in the name of Sebring the obligee, but for the benefit of Daniel Latourette, into whose hands it had come, but without assignment.
The plaintiff on the trial, instead of calling the instrumental witness to prove the execution of the bill, called one Stryker, a constable, who testified that he had had sundry executions in his hands against Sebring, the obligee, at the suit of Latourette, the real plaintiff; that he had received this bill from the said Sebring, as security for the payment of the said executions, and had handed the same to the said Latourette; and that Hogland, the defendant, had acknowledged to him, that he owed on the said bilL 60 or 70 dollars, which he would pay to any holder of the bill, provided it was not called out of his hands by a certain mortgage, &c.
There was some further evidence given by this constable, but this was the whole proof of the execution of the bill, and of the balance due upon it. And upon this state of the case the defendant moved for a nonsuit, but was overruled by the justice.
Now it is a settled principle, that in actions upon bonds and *other instruments under seal, the subscribing witness must always be called to prove the execution of them, unless some reason is shewn why he cannot be procured ; and that no confession of the obligor made, or pretended to be made, to a third person, is sufficient. Esp. 257. Doug. 205. Especially it is so in this case, where the execution of the bill was not pretended to have been
Without taking notice of other objections to this proceeding, for this one
Let the judgment be reversed-