majority">By the Court, Brady, J.

The proof in this case was that Joseph Gr. White was the captain of the ship Hudson. That the ship was towed out to sea on or about the 19th of March, 1854. That a person on board the ship was addressed by the captain of the towboat as Captain White. ' That the person so addressed replied to such-address, and also gave orders to the second officer on board the ship as to what sails to let loose. And further, that as the captain of the towboat was leaving the ship, he said “Grood by, Captain White;” and that the person so addressed acted as captain of the ship. This testimony was prima facie sufficient to show that Joseph Gr. White went out as captain of the ship Hudson, and to throw the burden of proof to the contrary on the defendant. In Nelson v. Whittall (1 Barn. & Aid. 19,) it was held, in an action on a promissory note, that proof of the handwriting of a subscribing witness thereto, who was dead,—it having been shown that the defendant was present in the room when the note was prepared by the subscribing witness,—was sufficient, without proving the handwriting of the defendant. In Sewell v. Evans (4 Ald. & El., N. S. 1843, 626,) the action was on a bill of exchange drawn upon and accepted by the defendant in payment for goods sold and delivered. A witness stated that he introduced a person of the name of the defendant to the plaintiff’s testator as a customer, and that he saw the person so introduced write a letter. The letter was produced in evidence, and, as was admitted, established the case against the defendant by acknowledgment, if the identity of the writer and the defendant was shown. The facts occurred five years before the action was brought. The witness had not seen the person since, and and did not know whether that person was the defendant. In Roden v. Ryde, (Id. *105629), which, was an action against the defendant as acceptor of three bills of exchange, it appeared on the trial that all the bills were accepted, in the name of Henry Thomas Ryde, and made payable at the Regent street branch of the London and Westminister Bank. The cashier of the Bank stated that he knew the handwriting of Henry Thomas Ryde, and that the acceptances were in his writing. Being cross-examined, he stated that Henry Thomas Ryde had kept an account at the Regent street branch; that he had never seen him write, and did not know him; that his only means of knowledge as to his handwriting consisted in his having, as cashier, paid checks drawn in the name of the party alluded to by him; and that he had paid none for some time. For the defendant it was objected that there appeared no evidence to identify him with the Henry Thomas Ryde spoken of by the witness. The judge (Williams) thought there was a prima facie case of identity, and overruled the objection. On rules nisi in both these cases, the court held the proof sufficient. Lord Denman, at page 633, says: “ But, in cases where no particular circumstance tends to raise a question as to the party being the same, even identity of name is something from which an inference may be drawn.” Williams, J., at page 634, says: “A man of the defendant’s name had kept money at the branch bank, and this acceptance is proved to be his writing. Then, is that man the defendant ? That it is a person of the same name is some evidence, till another party is pointed out who might have been the acceptor.”

Applying these cases to the one in hand, the facts that the defendant in the execution was theretofore the captain of the ship Hudson, and that a Captain White was commanding the ship Hudson when she went to sea, were at least some evidence that the person so commanding was the defendant in the execution, “ till another person was pointed out.” The natural presumption, arising from the facts, is that Joseph Gr. White went to sea in the ship Hudson, and it seems to be very clear that the error in the charge, for which the presiding judge ordered a new trial, was one which materially affected the plaintiff’s recovery, and *106entitled him to a new trial. In Long v. Hitchcock, (9 C. & P. 619), to which we were referred on the argument, and which was an action for crim. con., Lord Abingeb charged the jury “ that the plaintiff was to prove his case to their satisfaction. That if he left it doubtful, either from the circumstances which surrounded it, or from the character of his witness, they could not say that he had made it out.” The peculiar circumstances of that case warranted the language used. The only witness called to prove the adultery had been convicted of felony, and had been several times in prison charged with various offences; and, on cross-examination, would not swear that he had not stated that his statement was false. But the jury were not told that the plaintiff was bound to produce clear and positive proof.

The testimony in this case, having been prima, facie sufficient, should have been submitted to the jury for their consideration. Whether it was sufficient to prove the departure of Joseph G. White, the defendant in the execution, was for their determination.

Order of special term affirmed, with costs.

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