(After stating the first exception.) It appears to me, that the evidence was properly admitted. The assignment not being according to the act of assembly, the action could not be supported in the name of the plaintiff, in his own right, and was, therefore, brought by him as executor, for his own use in his private capacity. 1’here was no necessity for mentioning the assignment in the statement, nor has the defendant’s plea called it into question. But the defendant contends, that the variance from the statement in the name of the assignor, shews, that it was not the writing on which the suit was brought. I do not think so. John Adam Lautermilch, and Adam Lautermilch, may be the same person; and the writing produced, agreeing in all other respects with that described in the statement, it was right, that it should be submitted to the jury, who were to decide on the issue of non est factum.
There was another exception to the opinion of the Court, in admitting evidence of the hand-writing of the plaintiff; who, together with the wife of the obligor, were the only subscribing witnesses to the single bill. The plaintiff contended before the Court below, that the hand-writing of the obligor ought to have been proved, before evidence of the hand-writing of the subscribing witness was admitted. This exception, however, was very properly relinquished, as the point was decided by this Court in the case of Hamilton's lessee v. Marsden, 6 Binn. 45.
I am of opinion, that the judgment should be affirmed.
Gibson J. concurred. Duncan J. concurred.Judgment affirmed.