The defendant having verified his plea of non est factum by' affidavit, the plaintiffs were bound to prove the execution of the note. The ..affidavit was not evidence for the defendant, but, under the statute, it had the effect merely to put the execution of the instrument in issue. To maintain the issue on their part, the plaintiffs had only to prove, that the defendant was liable as maker for the payment of the note. The proof showed that the signature was not in his handwriting. It was not his note, therefore, unless he had originally authorized his name to be subscribed as one of the makers, or, participating in the consideration and aware of the circumstances under which the note was made, he had subsequently ratified the unauthorized act of another in putting his name thereto. The Circuit Judge was of the opinion, from the other facts of the case, that the defendant. became a party to the note in one of these ways. "We are not prepared to hold that he erred in coming to such a conclusion. Part. payment of a note, by the. person in whose name it purports to be made, is sufficient proof, prima facie, of its execution by him. Unexplained, such an act -is a strong and unequivocal recognition of the genuineness of the note. It is a. solemn admission that he executed the note, and is liable for its payment. It dispenses with proof either that the signature is genuine, or that it was subscribed to the. note by his authority. Here, the defendant made a payment to the school commissioner,. - which was credited on the note in controversy. It was the only-obligation that the commissioner then .held against him. There had been another note in his hands, but it had been given up,, and this note substituted in its place. Before the payment was-made, the defendant was informed by his co-surety that a new note, purporting to. be signed by the same parties, had been ■ given to the commissioner, in lieu of the old one.. It was a fair inference, from these..circumstances, that he designed the payment to be applied on' the new note, and not on the old one, which he had good reason to believe had been cancelled. .
The judgment of the Circuit Court is affirmed, with costs; -
tJudgment affirmed.