
    Long against Ramsay, executor of Long.
    In Error.
    ERROR to the Common Pleas of Westmoreland county.
    
      Robert Long brought an action of debt in the court below against the executor of John Long deceased, to which the pleas were non est factum and payment. The action was founded on an instrument of writing, signed by John Long, . dated November 13th, 1797, promising to pay to Robert Long, or order, 31/. 15s. 8d. nine months after date. The seal was made.by the flourish of a pen, and there were no subscribing Fwitnesses. A witness on behalf of the plaintiff swore that he had frequently seen the testator write, that he was well acquainted with his handwriting, and that he verily believed the signature was his handwriting.
    To support the second plea the defendant gave in evidence a note of settlement between Robert Long and John Longt dated August 20th, 1799, and signed by John Long, stating 57/. 12s. Hi/., with lawful interest, to be due to Robert Long, with a receipt thereon indorsed, of a payment of 80 dollars, part thereof, in 1804. The plaintiff read a deposition 'of John Sturgess, stating that John Long, in the year 1804, had acknowledged that he owed money to the plaintiff.
    The Court below charged the jury that it appeared, that the signature was the handwriting of the deceased; but it did not appear, either from the face of the writing itself, or by any testimony, that it was sealed and delivered as- a deed. That it would be extremely dangerous to consider eveiy instrument as a deed to which a mere [Z. Z.] is attached, without any proof. Not having any evidence on this point, they were of opinion, that they plaintiff had not supported the first issue. As to the second, the only evidence of payment arose from the note of a subsequent settlement between the parties. This affords a strong presumption that the fust note, the one in question, had been taken into view and discharged. To rebut this presumption the testimony of John Sturgess has been adduced; but when the time of the conversation in 1804, without any reference to any particular note, is considered, it is entitled to small weight. We’ think, on the whole, that the verdict ought to be for the defendant. To this opinion the plaintiff excepted, and the Court sealed a bill of exceptions'.
    
      : A seal made ■with, the flourish of a pen is sufficient.
    
      . Subscribing witnesses are not essential to make a good deed. It is enough if there isa sealing and delivery, and on proof of the handwriting of the obligor, the jury may presume the sealing and delivery.
    It is not error if a judge state his opinion to the jury on a matter of fact, in which he is mistaken; but it is error to direct them erroneously in matter of law, so as to preclude their exercising their judgment.
    
      Alexander, for the plaintiff in error,
    cited 5 Bac. Ab. 159. Obligation, C. note. Jones v. Logwood 
      
      .
    
    Forward, contra.
    
      
      
        Wash. Rep. 42.
    
   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 according 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.  