Clayton’s Notebook, 180
High Court of Errors and Appeals of Delaware.
June, 1818.
The plaintiff below proved that the subscribing witness was out of the state, and then offered to prove the handwriting of the witness and of the maker, which the Court refusing to admit, verdict was found for the defendant.
On exception to this opinion the case was argued this term.
CHANCELLOR RIDGELY. (Present: BOOTH, C. J., PAYNTER and COOPER, JJ.)
All the Court except myself think the Supreme Court should have admitted the proof of handwriting of the maker and the witness after residence of that witness out of the state was proved. And I concur with my brothers that the plea of non est factum was a nullity, and, as the other pleas admit and avoid the note, there was no need of proving it. It should have gone to the jury without requiring any such proof.