
    *Bogle, Somerville & Co. v. Sullivant.
    [Friday, April 26, 1799.]
    Evidence — Sufficiency—Non Est Factum. — [On the plea of non est factum, proof of the hand-writing • of the subscribing witnesses, and that they are ■ dead, will be sufficient to submit the case to the jury.] ' • -
    Same — Admissibility—Weight—Province of Court; of ■ ■ Jury. — It is the province’of the Court to decide on the admissibility of testimony; — and of the jury to decide on its weight.'
    This w.as an action of debt brought in •the District Court by Bogie & Co. against Sullivant, upon a bond. The defendant plead non est factum; and the plaintiffs took issue. Upon the trial of the cause, ithe plaintiffs filed a bill of , exceptions to the Court’s opinion ; which stated, “that the plaintiffs offered in evidence to the jury, proof of the hand-writing of the subscribing witnesses to the bond; and that the said witnesses were dead. That the plaintiff moved the Court to instruct the jury, that the said .testimony was sufficient proof of the execution and delivery of the bond; but, that the Court were of opinion knd did instruct the jury, that the said testimony was not conclusive evidence to maintain the issue on the part of the plaintiffs; but left it to the jury to determine the weight of such evidence.”
    Verdict and judgment for the defendant.
    _ And now Bogle, Somerville & Co. petitioned this Court for a writ of supersedeas to that judgment.
    Randolph, for the petitioner.
    The Court ought to have instructed the jury, according to the application; which went only to request their opinion upon the sufficiency of such testimony in law. Besides, as no other evidence appears to have been given, they might have told the jury, that it.was the best testimony which the nature of the case would admit of, if it was believed by them.
    ' Cur. adv. vult.
    
      
      Evidence — Weight—Province of Jury. — The principal case is cited with approval in Dabney v. Taliaferro, 4 Rand. 263; Brooke v. Young, 3 Rand. 114; McVeigh v. Allen, 29 Gratt. 594; Lloyd v. Scott, Fed. Cas. No. 8,434,15 Fed. Cas. p. 726.
      See Ross v. Gill. 1 Wash. 87; Keel v. Herbert, 1 Wash. 203; Blincoe v. Berkeley, 1 Call 412; Martin v. Stover, 2 Call 514; Fisher v. Duncan, 1 H. & M. 563; Crabtree v. Horton, 4 Munf. 59; Fowler v. Lee, 4 Munf. 373; Whitacre v. M'Ilhaney, 4 Munf. 310.
      See also, cases cited in foot-note to McDowell v. Crawford, 11 Gratt. 377.
    
   PENDLETON, President.

Delivered the resolution of the Court to the following effect;

The Court sees no difference between this and other cases, where the evidence is admitted, and the weight which it ought to have is left to the jury, who have a right to decide it. We, therefore, discover no error in the judgment; 'and, consequently, deny the motion for a writ of supersedeas.  