Jefferson County IL Archives Court.....Schools, William H Walter V Trustee Of  1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 18, 2008, 12:52 am

Source: Reports Of Cases
Written: 1850

William H. Walter, impleaded, etc., plaintiff in error, v. Trustees of Schools 
for Town two south, Range two east, etc., defendants in Error.

Error to Jefferson.

A plea of non est factum, verified by affidavit, puts the plaintiff to proof 
of execution of the instrument sued on, but such an affidavit is not evidence 
for a defendant. To maintain the issue raised by such a plea, the plaintiff 
had only to prove that defendant was liable as maker.(a)

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 his 
name thereto, he becomes liable as maker.(b)

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.

This was an action commenced by the trustees of schools for town 2 south, 
range 2 east, 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 cause 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 bands when 
defendant paid the money to him. That all the names to the note appeared 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 plaintiff in error. 

S. G. Hicks, for defendants 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 put 
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.

Judgment affirmed.

---------------------------
(a) See R. S. 1874, ch. 110, sec. 34.

(b) Delahay v. Clement, 4 Scam., 575. A person accepting a bill thereby admits 
its proper execution: P. & O. R. R. Co. v. Neill, 16 Ill., 269. Where one 
delivers a note written over his own name he is estopped to deny his 
signature, even though it were not written by himself: Melvin v. Hodges, 71 
Ill., 422.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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