Drury v. Vannevar , 55 Mass. 276 ( 1848 )

Shaw, C. J.

The judge, before whom the trial took place, was correct in declining to instruct the jury, as requested by the plaintiffs, that it was a presumption of law from the facts in evidence, that the defendant saw or knew of the attestation. Whether the defendant saw or knew of the attestation was a question of fact, which it was for the jury to decide, upon the evidence before them ; and there was evidence in the case sufficient for the jury to act upon, and from which they would have been authorized to infer the fact of knowledge. In order to constitute an attestation of a note, within the statute, the witness must put his name to it openly, and under circumstances which reasonably indicate, that his signature is with the knowledge of the promisor, and is a part of the same transaction with the making of the note. The judge was also correct in saying, that the burden of proof was on the plaintiffs, to show that the note was properly attested ; but taking the instructions prayed for in connection with that which was given, wé think the jury were left to infer, or that they might have thought themselves at liberty to infer, that the defendant’s knowledge could only be proved by positive evidence, instead of being an inference of fact, which they were authorized to make from the facts in evidence. The instructions not being sufficiently clear in this particular, the exceptions are sustained, the verdict set aside, and a new trial ordered in this court.