Edelen v. Gough , 5 Gill 103 ( 1847 )

Dorsey', J.,

delivered the opinion of this court.

By the plea of non est factum, the plaintiff is required to prove the signing, sealing, and delivery of the instrument to which the plea is interposed. These three facts constitute the affirmative of the issue, and are to be proved by the. plaintiff to entitle him to a recovery. Whether the person appearing to be the attesting witness, did subscribe his name to the instrument, in the case before us, forms no part of the issue to be tried by the jury. It is true, that for the benefit of the defendant, and not of the plaintiff, the law, prior to the passage of the act 1825, ch. 120, required the latter to sustain the issue on her part, by the testimony of the subscribing witness, if in her power to obtain it, and preliminary to all other proofs. Let the testimony of the witness be what it might, the parties were then at liberty to adduce any other competent evidence, tending to the establishment of the issue, on their respective parts.

The greater portion of the argument in this cause, and of the authorities referred to, apply to the case where the plaintiff is unable to produce the testimony of the subscribing witness, by reason of his death, absence, interest, or other disqualification. On this part of the argument, and the adjudications referred to in connection with it, no opinion is designed to be expressed; no such question arising in the case .before us. Here the subscribing witness was produced on the trial; and on his testimony only, did the plaintiff rely to prove the signing, sealing, and- delivery of the instrument in issue before the jury. The defendant having prayed the court to instruct the jury, that upon the evidence so given, the plaintiff was not entitled to recover. The court refused to give such instruction; “ but admitted the instrument to go to the jury, to which the defendant excepted.”

The only question brought up by appeal, under this prayer, in the bill of exceptions, is, was the testimony given legally sufficient to have warranted the jury in finding that the defendant did sign, seal, and deliver the instrument thus admitted by the court in evidence before them. To judge of such sufficiency, the testimony of the witness must be examined; which is as follows: “ that Ann Edelen, the defendant, took her seat at the table—that he did not see her write her name—he did not know whether at the time of his signing his name as witness, the said Ann Edelen had signed her name—that he could not say that the signature to the paper was in the hand-writing of said Ann Edelen—that the said paper was not, to his knowledge, ever read over to said Ann Edelen, or read by her.” It has not been, and surely could not be, contended, that standing alone, the proof of his hand-writing by the subscribing witness, was prima facie evidence, or evidence of any weight upon the issue, as to the signing, sealing, and delivery of the bill in question. It was entitled to no consideration, except when taken in connection with other proof in the cause. It then only operates as a corroborating circumstance, showing the superiority of the means of knowledge possessed by the witness. But what is the nature of the other proof then to be corroborated. It is of such a character as neither to impart or receive strength from the attestation; but its obvious tendency is to cast discredit upon it. From the date of the instrument, to the examination of the witness, but two years and ten days had elapsed. No pretence on his part, that his knowledge of the transaction was not as full and as accurate as on the day of its occurrence. What under such circumstances ought to have been expected from him. Why that he would have proved every thing that in his character of attesting witness, it was incumbent on him to have known. He should have proved that he subscribed the instrument as a witness, in her presence, or at her request; or at least, that she signed her name to it in his presence, or acknowledged it to be her signature. For aught that appears in his testimony, he may have signed his name to it without her knowledge or consent, and out of her presence; and she may never have read it, or heard of it, or seen it, or had any knowledge of its concoction or existence, till after the institution of this suit. Such proof, instead of being prima facie evidence of the signing, sealing, and delivery of the instrument, is negatively prima facie evidence that it never had any legal existence. The court below therefore erred in permitting it to go to the jury.

There is no error in the refusal of the county court to admit to the jury the evidence offered by the defendant in his second bill of exceptions. It was, in its nature, so remote and irrelevant to the matters in issue in the cause, that its effect would most probably have been to bewilder, and mislead the jury; and would have opened a door by which the jury might have been involved in the trial of a complication of issues—the finding of which would have had no bearing on the questions which the jury were sworn to try.

The court below erred in refusing the prayer of the defendant in the third bill of exceptions; for the reasons herein before stated, in reference to the first bill of exceptions.

There is no error imputable to the county court, in its refusal to grant the prayer of the defendant in the fourth bill of exceptions; “ that the plaintiff was not entitled to recover, because there was no sufficient consideration expressed on the face of the cause of action, to supply the requirements of the statute of frauds, as relates to a promise to pay the debt of another.” The seal to the instrument, on which the suit was instituted per se, imported a consideration; and the expression of no other consideration was requisite: the statute of frauds, on this subject, not embracing or having application to instruments under seal. But were it otherwise, the court were still right, because the terms, “ for value received,” was a sufficient expression of a consideration required by the statute. See Douglass vs. Howland, 24 Wendell, 35; and Busk vs. Stevens & Kendle, 24 Wendell, 256. The refusal of the court was justified on another ground. The instrument, on which the suit was instituted, was not given as a promise or agreement to pay the debt of another; but to secure payment of the defendant’s anterior indebtedness to the plaintiff. The amount of this indebtedness was ascertained by her settlement of two notes of Henry A. Edelen to B. Gough. But whether she was a surety in said notes, or how she became answerable for the payment thereof, does not appear. Having, however, acknowledged herself so indebted, the instrument before us was given to secure the payment of her own debt, not the debt of another person.

There is no error of the county court disclosed in the second and fourth bills of exceptions; but for its errors in the first and third hills of exceptions, its judgment should be reversed, and a procedendo awarded.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.