
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1814.
    Trustees of Jane Heard v. John Martin, et al.
    
    A agreed before marriage to convey to'trustees, for his intended wife, a negro. The agreement was signed by A. the husband, and B. the wife. Held, that in an action by the trustees, under the settlement, to recover the negro from a third person, it was not necessary, after-proving the hand-writing of the husband, and that of the witnesses, who were out of the State, to prove the signature of B. the wife.
    This action was brought to try the right of Jane Heard, to a certain negro, Rose. Her claim was founded on a marriage contract, entered into before marriage; John -Heard agreed, in consideration of a marriage to take place between him and Jane Bernard, to make over to her, among other things, the negro in question ; and the writing was signed by both. On the trial, the hand.writing of the subscribing witnesses, who were dead, or out of the State, were proved ; as also that of John Heard. .The hand.writing of Jane Bernard, could not be proved ; and therefore, the presiding judge ordered a nonsuit. The question now is, whether it was necessary to prove her hand-writing ?
    Goodwyn and Johnson, for the motion. Bacon and Martin, contra.
    
   Nott, J.

I am of opinion, that it was not necessary that her hand.writing should have been proved.

This is not an action brought by one party to a contract against another, to compel a performance of that contract; but it is brought by persons in whom the property has vested by a contract executed against third persons, who are strangers to the transaction. The legal right is in the trustees. They derived it from John Heard, •and not from Jane Bernard. The object of her signature was «merely to signify her assent.to the contract. It conveyed no property, because she had none. That the contract has been carried into effect on her part, is-presumed from suing by the name of Jane Heard. And even if it did not, it does not lie in the mouths of the - i t ^ defendants to make the objection ; . unless they are creditors, and come in on the ground of fraud ; which cannot appear to the court, .at this stage of the cause. The motion ought to be granted.

Brevard, Colcock, and Bax, Js., concurred.  