The opinion of the court was delivered,
by Thompson, J.The plaintiff, in his representative capacity, sued the defendant as a eo-promissor with Abraham Eshbach, on the following instrument:—
Allentown, March 29th 1856.
One year after date, I promise to pay to the order of Samuel High, die sum von acht huntert daler, without defalcation, for value received, with lawful interest till paid.
Abraham Eshbach. [Seal.]
George Steininger.
The acknowledgment of the signature by the defendant having been testified to, the court admitted it in evidence under exception. This constitutes the first assignment of error.
The effect of this ruling was a determination that the instrument was primd facie the promissory note of the defendant, and as this and the eighth and tenth assignments, which are exceptions to the charge, present in substance but one question, they will be considered together.
Does this signature, considering the form of the instrument, its execution, and the position of the defendant’s name on it, primd facie import an obligation, and to go to the jury on proof, of the execution, as in ordinary cases ?
It matters little where the signature of a party to a writing may be placed, if the instrument imports an obligation or an engagement, and is accordingly so signed. Whether it appear at the right or the left hand of the paper, the signer will be ■presumed to be bound by it, for there is no room for an inference that any other was intended to be the signer.
But this cannot be claimed where the signature occupies a position that is certainly equivocal. Still less so when the position is that of a subscribing witness, and another has executed the instrument prepared for the signature of but one person. That is our case.
The instrument is in form the single bill of Eshbach, and as such it was executed by him. At the other end of the paper, stands the defendant’s name. It was claimed, when offered in evidence, that, inasmuch as the word “witness” did not appear, to explain the purpose of the defendant’s signature, that therefore its appearance on the paper was primd facie evidence that it was the promise of the defendant. It was only on this ground that the court could have admitted it on proof of the signature alone. The admission was not preceded by any other proof, but being followed by testimony which would have justified its admission, this error would have been cured, for the order of testimony is generally a matter for the court: but the doctrine that this execution was to be taken to be primd facie evidence *268that it was the promissory note of the defendant, was a serious error, as will appear presently, and not cured by the oral evidence that it was intended to be so, which was afterwards given.
I do not doubt but there was evidence from which a jury might, if they believed it, have found that the instrument was the promissory note of the defendant. A note drawn in the singular number, and signed by several, has often been held to be binding as the joint and several note of all: Byles on Bills 67, n. 1, and authorities there cited.
Nor do I doubt that a sealing by one, and a signature without a seal by another, might be the single bill of one and the promissory note of the other: Biery v. Hains, 5 Whart. 563. But then it must either appear to be so by the instrument, or, if equivocal, be made to appear so by proper proofs.
Primd facie it was not the several note of the defendant, for it was the perfect single bill of another. His signature did not go a step towards establishing that it was his promise. It was just where the name of the subscribing witness is usually to be found. It was an instrument under seal, which is usually executed in the presence of a subscribing witness, and in a form which primd facie excluded any legal inference of the kind assumed. . Custom is law, and by it we are justified in inferring that an instrument drawn to be signed by one person, and signed at the right hand, is the signature of the promissor, and a signature on the left is the attestation. As it stood, the inference was against the paper being the note of the defendant, and required proof before its admission to overrule this legal inference. It is true the plaintiff gave evidence to 'prove that it was intended to be the note of the defendant, by his own admissions and consent, at the time of signing. But if it was to be taken to be his note primd facie as it stood in his signature, it is plain that the jury might have found for the plaintiff, although the entire oral testimony might be discredited, or none given. This was the error : it was not the defendant’s note unexplained, and there could not properly have been a recovery, without there was a preponderance of testimony to establish an intended liability by the defendant. The charge was, “that where a man puts his name at the bottom of a note, primd facie he is a party to it as a promissor. His responsibility does not depend upon whether his signature is a little more to the left than to the right.”
This, while undoubtedly true where there is a consistency between the form and the signature, where there is but one name designed to be put to the instrument, is not true where the instrument is equivocal, or complete with one signature, and there is another, neither executed with equal solemnity with the first, nor in the place of a promissor, and to a paper speaking but for one person, and already executed by one. Under this general *269instruction, the jury may have given their verdict without regard to what was essential to be established by proof, and for this reason the judgment must be reversed.
The other assignments of error are not sustained. It is true the question allowed to be asked Anna High was not altogether unobjectionable on the ground assigned. Facts ought not to be assumed in an examination in chief, but as much latitude in the direction an examination is to take is allowed in all courts, we would not reverse on account of the permission to ask the question in the form in which it was put in this case. Doubtless, all complaint will be avoided on another trial.
Decree reversed, and a venire de novo awarded.