
    Michael McHugh v. Delamere Brown.
    
      Evidence: Written instruments: Execution. In an action upon a warranty of title free from incumbrances, of a span of horses sold by defendant to plaintiff, it is error to receive in evidence against objection a note and mortgage purporting to "be executed "by defendant without any proof of their execution.
    
      Heard and decided October 28.
    
    Error to St. Clair Circuit.
    This was assumpsit, the declaration containing, besides the common counts, a 'special count, alleging in substance, though quite informally, that plaintiff purchased a span of horses of defendant for five hundred dollars, which plaintiff warranted to-be free from incumbrances, and that in fact there existed an incumbrance upon them in favor of one Daniel Ryan for five hundred dollars. On the trial, plaintiff, to prove the incumbrance, offered in evidence a promissory note and chattel mortgage for one hundred dollars and purporting to be executed by defendant to Daniel Ryan. Defendant’s counsel objected on the ground that their execution had not been proved, but the court admitted them. Plaintiff having recovered judgment, defendant brought error . and alleged this ruling, among others, as error.
    
      James J. Barry, Miles é Goe and Hoyt Post, for plaintiff in error.
    
      Ghadwich & Potter, for defendant in error.
   Per Curiam:

We think the court erred in admitting the note and mortgage in evidence without any proof of their execution, and for this error, and without passing on any of - the other questions suggested, the judgment must be reversed, with costs, and a new trial granted.  