The opinion of the Court was delivered by Tilghman C. J.
Tilghman C. J.This is an action of debt on a single bill. The plaintiff produced in evidence an instrument of writing signed by the defendant’s testator, with a seal made by the flourish of a pen, without any subscribing witnesses. The president of the Court of Common Pleas charged the jury that the plaintiff could not recover, because no proof had been given of sealing and delivery. As to the kind of seal, it has been held to be sufficient, and is not now to be questioned. It was once supposed, that a deed could not be good without subscribing witnesses; but of late it has been considered that such witnesses were not essential. It is enough if there was a sealing and delivery; of this the jury are to judge, and upon proof of the handwriting of the obligor, they may presume the sealing and delivery. It was wrong therefore to charge peremptorily .that the plaintiff had failed in supporting his action. The law should have been explained, and the fact left to the jury. It is not error, if the judge states his own opinion on a matter of fact in which he is mistaken. But I consider the charge in this case as a deviation in matter of law, which precluded the jury from exercising their judgment.
2. There is another point, on which the opinion of the Court was excepted to, but I think without reason. One of the defendant’s pleas was payment, in support of which evidence was produced. The president expressed his opinion on the evidence favourably to the defendant. This he had a right to do. But he gave no opinion by which the jury were prevented from considering the case, and deciding ac*74cording to their own judgment. There was therefore no error. But the judgment must be reversed for the error in' the first point, and a venire facias de novo awarded.
Judgment reversed, and a venire facias de novo awarded.