
    *Kelly v. Paul.
    July Term, 1846,
    Lewisburg.
    Evidence -Handwriting — Statute — Construction of.— The act of the 6th of February 1828. Sup. Rev. Code, p. 265, dispensing with proof of handwriting in certain cases, only applies where the declaration alleges, that the defendant, or the person stated to have made the writing, subscribed his name thereto.
    
    This was an action of assumpsit by Paul against Kelly, in the Superior Court of the county of Rockingham, upon the following draft:
    Mt. Crawford, Oct. 19, 1840. Hr. Jos. S. Carson, Treasurer of the
    Valley Turnpike Company.
    Sir, — Please pay the bearer, Thornton Paul, seven hundred and fifty dollars and eighty-two cents; and this shall be your receipt for the same.
    (Signed,) Patrick Kelly.
    The declaration did not aver that the draft was signed by the defendant, or by any person for him.
    *The issue was made up on the plea of non assumpsit, and upon the trial, the plaintiff offered the draft in evidence, to which the defendant objected, unless the plaintiff would prove the handwriting of the defendant: but the court overruled the objection, and admitted the paper as evidence, without proof of the handwriting of the defendant. To this opinion of the Court the defendant excepted; and a verdict and judgment thereon being given for the plaintiff, the defendant applied to this Court for a supersedeas, which was allowed.
    Stuart, for the appellant.'
    Fultz, for the appellee.
    
      
      Evidence — Handwriting — Statute — Construction of. —In Robinson v. Dix, 18 W. Va. 541, it is said: “In Kelly v. Paul, 3 Gratt. 101, it was held, that when the declaration alleged the writing to have been made by the defendant but did not allege, that it was signed by the defendant, the case did not come within the statute, and the signature must be proven. But in the revisa! of 1850 this statute was dropped; and a much more comprehensive one adopted, which is the one in our Code, see ch. 125, sec. 40, p. 605.”
      The principal case is cited in Phaup v. Stratton, 9 Gratt. 617, 610. See Shepherd v. Frys, 3 Gratt. 442.
      It was held in Robinson v. Dix, 18 W. Va. 529, that if a defendant in a chancery suit in his answer alleges, that a third person or the plaintiff wrote a letter touching the matter in controversy, and flies with his answer as part thereof what purports to be the original letter, such letter under section 40, chapter 125 of the west Virginia Code, will be regarded by the court as genuine without any proof of the handwriting, unless the fact, that such letter was written by such third person or by the plaintiff, is denied by an affidavit.
    
    
      
      
        The act says: That in all actions which may hereafter be brought upon any promissory note, bill of exchange, draft or other writing, or on any endorsement, assignment or acceptance thereof, and in which the declaration shall allege or charge that the defendant or any other person made, assigned, endorsed or accepted the same, and subscribed his or her name thereto, every such note, bill, draft, assignment, endorsement, acceptance or other writing, with the name or signature thereto subscribed, upon being offered in evidence, shall be deemed and taken to be genuine, and the name or signature, to have been subscribed or made by the person charged therewith, without any proof of the handwriting; unless the^defendant or some other person shall make affidavit, to be filed with the plea, that the said note, bill, endorsement, assignment, acceptance or other writing, was not made by the person charged therewith, or in case it be the name or signature of any person other than the affiant, then that he hath good cause to believe, and does believe, that the same was not so made or signed.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the Circuit Court erred in permitting- the order or draft, purporting to have been drawn by the plaintiff in ' error, to go in evidence to the jury, as stated in the second bill of exceptions, without evidence of the genuineness of the signature thereto; inasmuch as the declaration only alleges that the plaintiff in error made said order or draft, without also alleging that he subscribed his name thereto, which the statute of the Sth of February 1828, dispensing with the proof of handwriting in certain cases, Sup. Rev. Code, p. 265, requires. It is therefore considered by the Court, that the said judgment is erroneous, and that the same be reversed and annulled, and the verdict of the jurors set aside; and that the plaintiff in error recover against the defendant in error his costs by him expended in the prosecution of his writ of error aforesaid here. And the cause is remanded to the said Circuit Court for a new trial to be had of the issue between the parties, prior to which, the said Circuit Court is to give the defendant in error leave to amend his declaration, and the plaintiff in error leave to file such affidavit as the statute authorizes, if by them respectively applied for.  