
    Lautermilch executor for the use of Lautermilch against Kneagy.
    
      Monday, May 26.
    The plaintiff averred in his statement, that the single bill on which be claimed, was assigned by himself, John Adana Lautermilch, executor of A, to B, who reassigned to the plaintiff, on. 11071 est factum, a single bill agreeing in other respects with the statement, but assigned by Adam Lautermilch. ft agreeably to the last will and testament of A,” (it being granted, that the plaintiff was A’s executor,) is evidence to the jury to determine whether Adam Lautermilch and John Adam Lautermilch are the same person.
    In Error.
    ERROR to the Common Pleas of Lebanon county.
    Where one or the subscribing witnesses to a single bill, became afterwards assignee and plaintiff, and the other is the wife of the obligor, proof of the hand-writing of the plaintiff is evidence without previous proof of the hand-writing of the obligor.
    This action was brought by John Adam Lautermilch,
    executor of Margaret Bickel, deceased, for the use of John Adam Lautermilch against Tost Kneagy, administrator of Erhardt Heckedorn, upon a single bill given by Heckedorn to Margaret Bickel. No declaration was filed; but the plaintiff made a written statement of the cause of action, according to the act of assembly. In this statement'it was said, that the executor of Margaret Bickel, the plaintiff, assigned the said writing obligatory to John Lautermilch, who afterwards re-assigned it to the plaintiff. The defendant pleaded non est factum, and payment, and issues were joined in the usual manner. On the trial the plaintiff produced the single bill, which agreed in all respects with the statement, except, that the assignment to John Lautermilch was signed by Adam Lautermilch, and not John Adam. It was mentioned, however, in the assignment, that it was made “ agreeably to the “ last will and testament of Margaret Bickelf and it was granted, that John Adam Lautermilch was her executor. The defendant objected to this evidence, but the Court admitted it, and their opinion was excepted to.
    The plaintiff also offered to prove, that the name John 
      
      Adam Lautermilch, subscribed as a witness to the said note, before he became interested, was the hand-writing of the plaintiff; it being admitted, that the other subscribing witness was the wife of Heckedorn. To this also an objection was made, which was over-ruled, and another exception taken. '
    Godwin, for the plaintiff in error.
    Elder, contra.
   Tilgiiman C. J.

(After stating the first exception.) It appears to me, that the evidence was properly admitted. The assignment not being according to the act of assembly, the action could not be supported in the name of the plaintiff, in his own right, and was, therefore, brought by him as executor, for his own use in his private capacity. 1’here was no necessity for mentioning the assignment in the statement, nor has the defendant’s plea called it into question. But the defendant contends, that the variance from the statement in the name of the assignor, shews, that it was not the writing on which the suit was brought. I do not think so. John Adam Lautermilch, and Adam Lautermilch, may be the same person; and the writing produced, agreeing in all other respects with that described in the statement, it was right, that it should be submitted to the jury, who were to decide on the issue of non est factum.

There was another exception to the opinion of the Court, in admitting evidence of the hand-writing of the plaintiff; who, together with the wife of the obligor, were the only subscribing witnesses to the single bill. The plaintiff contended before the Court below, that the hand-writing of the obligor ought to have been proved, before evidence of the hand-writing of the subscribing witness was admitted. This exception, however, was very properly relinquished, as the point was decided by this Court in the case of Hamilton's lessee v. Marsden, 6 Binn. 45.

I am of opinion, that the judgment should be affirmed.

Gibson J. concurred.

Duncan J. concurred.

Judgment affirmed.  