Sumpter v. Geron ( 1840 )

Mr. Justice Trotter

delivered the opinion of the court.

The refusal of the court to give the instruction moved for by the plaintiff in error, is the ground relied on to reverse the judgment of the court below. The effect of the act of 1824 is to give to the plea in this case the qualities of a plea of non est factum. That plea puts in issue, the execution of the deed, and its continuance as a deed at the time of the plea. 2 Starkies’ Evid. 475. And proof of execution consists in evidence of the sealing and delivery of the deed. Ibid. It is surely not maintainable, as a legal proposition, that the plaintiff is bound under a plea of this sort to prove that the whole body of the note is in the hand writing of the defendant. It will be sufficient, if he proves the sealing and delivery of the deed, or that the signature of the name is in the hand writing of the defendant, or was placed there by his authority. We think therefore that the court below was authorised to refuse the instruction prayed for; and that the charge as given was strictly correct. If the defendant had sought to impeach the note on any one of the grounds which are admissible under the plea, and the court had refused the proof, then it would have been error. But the record furnishes none of the proof Which was offered to the jury, so that on another ground which has been repeatedly recognised in this court, the judge who tried the cause was well warranted in refusing the charge; there being no proof to which it could apply. As an abstract proposition of law, it is however undoubtedly true as stated, that the plea of non est factum, only requires the plaintiff to prove the execution of the note.

The record shows with sufficient certainty, as we think, that the jury which tried this cause were sworn. It is stated, after naming the individuals who composed the panel, that they found upon their oath, the verdict which was rendered. It is also more fully stated in the bill of exceptions.

Let the judgment be affirmed.