
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    Jacob Shiver v. Abraham Johnson.
    Where the maker of a note is a marksman, and the subscribing witness is out of the State, proof of the handwriting of the witness will be sufficient of the signature of the maker, y
    
      Note. See the case of Paisley v. Snipes, in this volume, p. 200, decided in Charleston, April 11,1807; and the case of Gervais v. Baird, p. 37, decided at Columbia. See, also, Doug. 93. 1 Bos. and Pull. 360. ,.
    Motion to set aside a decree on' summary process, and enter up judgment of nonsuit. The decree ,was given by Smith, J., in Sumter district, on a promissory noté’ of hand. Plaintiff proved the handwriting of the subscribing witness, and that he was absent from the state ; but gave no evidence to- prove the signature of the defendant, the maker of the note, which, signature was a marie in place of the maker’s name. On this evidence being given, a motion was made for a nbnsuit, which w-as overruled by the court.
    The motion in this court was .submitted without argument, by Branding, for the defendant, and Levy, for the plaintiff.
   Per curiam.

The question arises on 'the construction of the act of assembly, 1802, which requires proof of the signature of the party to be charged.- The signature of'a marksman may be proved bj the peculiarity of his mark,, or his acknowledgment, if the witness, whose name is subscribed to the note, does not attend ; .and proof of the handwriting of such witness is not sufficient, if he be within the State. But if the subscribing witness be not within the State, proof of Ms handwriting is sufficient, from the necessity of the case.

Motion rejected.  