#### William H. Walter, impleaded, &c., Pltff in Error, *v.*Trustees of Schools for Town two south, Range two east, &c., Defts in Error.

ERROR TO JEFFERSON.

A plea of *non*esi *fachim*verified by affidavit, puts the plaintiff to proof of execution of the instrument sued on, but such an affidavit is not evidence for a defend*66ant. To maintain the issue raised by such a plea, the plaintiff had only to prove that defendant was liable as maker.

If a party originally authorized his name to be subscribed to a note, or participating in the consideration, ratifies the act of another in putting Ms name thereto, he becomes liable as maker.

Tart payment of a note by the person in whose name it purports to be made, is sufficient proof, *prima facie,*of its execution by him.

This was an action commenced by the Trustees of Schools for T. 2 S., R. 2 E., before a justice of the peace, against the plaintiff in error and two others as joint makers of a promissory note. Service was only made on Walter. A judgment was recovered against Walter, who prayed an appeal to the Circuit Court of Jefferson county. In the Circuit Court, Walter filed his plea of *non est factum*properly sworn to, and upon issue thereon the canse was submitted to Denning, Judge, for trial, without the intervention of a jury, and judgment was rendered against Walter for the sum of $47 77, at August term, 1850. A bill of exceptions was taken, and Walter brings the case to this Court. The bill of exceptions shows, that the note sued on was handed to the School Commissioner by Adams, in lieu of another note which he held against the said defendant, one Adams, and another person, the defendant not being present. That defendant paid the commissioner of schools a sum of money on account of the note, which was endorsed thereon; the same witness stated that defendant afterwards told witness, and before defendant had paid anything on the note, that he had been told that Adams had forged his name to a note, which he had given -to witness in lieu of the old one, which defendant with others had signed as sureties of the said Adams. That witness had but one note'in his hands, when defendant paid the money to him. That all the names to the note apusared to have been written by the same person, and that witness did not believe that the name of the defendant to the note was in his handwriting.

R. F. Wingate, for Pltff in error.

S. Gr. Hicks, for Defts in error.

Treat, C. J.

The defendant having verified his plea of *non est factum*by' affidavit, the plaintiffs were bound to prove the execution of the note. The ..affidavit was not evidence for the defendant, but, under the statute, it had the effect merely to *67put the execution of the instrument in issue. To maintain the issue on their part, the plaintiffs had only to prove, that the defendant was liable as maker for the payment of the note. The proof showed that the signature was not in his handwriting. It was not his note, therefore, unless he had originally authorized his name to be subscribed as one of the makers, or, participating in the consideration and aware of the circumstances under which the note was made, he had subsequently ratified the unauthorized act of another in putting his name thereto. The Circuit Judge was of the opinion, from the other facts of the case, that the defendant. became a party to the note in one of these ways. "We are not prepared to hold that he erred in coming to such a conclusion. Part. payment of a note, by the. person in whose name it purports to be made, is sufficient proof, *prima*facie, of its execution by him. Unexplained, such an act -is a strong and unequivocal recognition of the genuineness of the note. It is a. solemn admission that he executed the note, and is liable for its payment. It dispenses with proof either that the signature is genuine, or that it was subscribed to the. note by his authority. Here, the defendant made a payment to the school commissioner,. - which was credited on the note in controversy. It was the only-obligation that the commissioner then .held against him. There had been another note in his hands, but it had been given up,, and this note substituted in its place. Before the payment was-made, the defendant was informed by his co-surety that a new note, purporting to. be signed by the same parties, had been ■ given to the commissioner, in lieu of the old one.. It was a fair inference, from these..circumstances, that he designed the payment to be applied on' the new note, and not on the old one, which he had good reason to believe had been cancelled. .

The judgment of the Circuit Court is affirmed, with costs; -

*tJudgment affirmed.*