— The second plea in this ease is clearly bad. It is not direct and positive, but is entirely argumentative. It is also void for uncertainty. It neither admits or denies, that the defendant executed the deed, but states hypothetically, that if executed at all, it was for a purpose entirely different from the one stated in the declaration. No fact is alleged upon which issue can be taken, and therefore it is not capable of trial. The demurrer to the plea, for the reasons stated, should have been sustained.
It is well settled, that where one signs his name to a blank piece of paper, with intent that it shall be filled up as a note, or endorsement, he will be responsible to any one becoming the owner of the paper in good faith, and for a valubale consideration; although the person entrusted with the blank should fill it up for a larger sum, or use it for a different purpose than the one agreed on. See Roberts v. Adams 8th Porter 301, and Herbert v. Huie, at the last term, and cases there cited.
But can this doctrine be applied to a bond? In the cases just cited there was an authority implied to fill up the blank; but does the mere signing a piece of paper, with the intent that it shall be filled up with a promise to pay a sum of money, imply an authority to seal and deliver it? Unless this implication can be made, there can be no recovery in such a case. It is true, that by our statute law, most of the distinctions between parol and sealed instruments at the common law, have been abrogated; and it would seem that the distinction we are taking is really without any difference; as there is in truth, no more solemnity at this day, in the execution of a bond by merely affixing a scroll to the name, than there is in the making of a promissory note; but so long as the distinction is suffered to remain by the Legislature, it must be recognized by this court.
The first and second charges therefore, moved for by the *432plaintiffs in error, as they assume, that a signature to a blank piece of paper entrusted to another to be filled up for a sum of money, will authorize the person so receiving it, to fill it up as a writing obligatory, and seal and deliver it, and that any one receiving it without notice, may recover on it, were correctly refused by the court. It is however, worthy of remark, that as the paper was in blank, and afterwards sealed and filled up to the plaintiffs in error, it is not easy to conceive how they could be ignorant of the facts.
The third charge, that the proof of the signature of Norwood to the bond, would he prima facie evidence that he executed it, should have been given by the court. By the silent operation of time, and by the diffusion of learning, the signing has become the most important part of the execution of a bond, especially since all notion of solemnity in its execution, has been exploded by the substitution of a flourish of the pen,-for the ancient common law impression on wax. Such being the case, proof of the genuineness of the signature, raises the presumption of the due execution of the deed. But this presumption, like all others, yields to the force of proof to the contrary.
The court therefore, should have given the charge, and to prevent the jury from being misled, it would have been highly proper to add, that nevertheless if it was in proof, that Norwood did not seal and deliver the bond, or authorize it to be done, the presumption would be destroyed.
Let the judgment be reversed and the cause remanded.