James Pannell Executor of Thomas Jeffrey vs. James Williams, 8 G. & J. 511

SpeNce, Judge, delivered the opinion of the court. This was an action of debt in Harford county court by James Pannell, executor of Thomas Jeffery, against James Williams. The defendant pleaded non est factum, and upon that plea, issue was joined. At the trial, the plaintiff to support the issue on his part, offered in evidence the bill obligatory of James Williams, ■which was in his plaintiff’s possession, and purported to have been signed and sealed by said James Williams, and attested by a certain John S. Williams.

The plaintiff further proved but not by the subscribing witness, that the name of the defendant thereto subscribed, was in the proper hand-writing of the said defendant, James Williams, and there rested his case. The defendant objected, that the evidence so offered was not sufficient evidence, of the signing, sealing, and delivery of the said bill obligatory, and prayed the court to direct the jury, that the said evidence was not sufficient to support the issue on the part of the plaintiff, the subscribing witness being then in court.

Which' direction, the court gave.' .The plaintiff excepted,- and this presents the question now for adjudication. We are of opinion that the court erred in their instruction to the jury in this cause.

The ■ act - of assembly of 1825, ch. 120, provides that in every suit or action at law, or in equity, in which it may be necessary to prove the execution of any instrument of writing whatsoever, attested by a subscribing witness or witnesses, it shall.and may be lawful -to prove the execution of such instrument of writing, in the same manner, and by the same evidence, that the same ought to be proved if not attested by a subscribing witness, or witnesses.

The plaintiff being in possession of the bill obligatory, and having proved that the name of the defendant thereto subscribed was in the proper hand-writing of said defendant, the possession by the plaintiff was prima facie evidence of the due delivery of the bond, which the court should have permitted to have gone to the jury by them to. be determined. 1 Har. and Gill, 418. JUDGMENT REVERSED AND PROCEDENDO AWARDED.