[1:] The presiding Judge in the Court below refused to admit the notes in evidence on the trial, on the ground that the proof of their execution was not sufficient to overcome the plea of not est factum, which had been filed. The plea in this case was not sworn to be true, which is necessary in this State to throw the onus of proving the execution of an instrument sued on, on the plaintiff. The defendant swears that it is true to the best of his remembrance.
[2.] But had it been good, the evidence was sufficient to authorize the notes to be read to the jury. The persons present at their execution were illiterate, except Williamson, the principal. They testified that Williamson, in the month of February, 1856, purchased cattle of the plaintiff for the sum of five hundred and ten dollars, for which he gave small notes; that defendant, Morris, agreed to become his security and authorized the plaintiff and Williamson to sign his name, they could not say that the notes sued on were the same notes. The notes bear date on the 6th February, 1856, and arc for the precise amount that Williamson agreed to pay for the cattle. The matter should have been referred to the jury as to the identity of the notes. But we do not consider the affidavit in support of the plea sufficient.
