
    Columbia, November Term. 1814.
    Trustees of Jane Heard vs. John Martin, et al.
    
    Goodwyn & Johnson, for Motion.
    
    Bacon & Martin, Contra.
    
    This action was brought to try the right of Jane-Heard to a certain negro, (Hose.)
    
    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 handwriting of the subscribing witnesses (who were dead, or out of the state,) were proved; as also that of John Heard. The handwriting of Jane Bernard, could not be proved : and therefore, the presiding judge ordered a non-suit. ‘l11'38^011 now is? whether it was necessary t# prove her hand-writing? '
   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 5 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 defendants to make the objection j 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.

Justices Brevard, Coucock and Bat concurred.  