¶1delivered the opinion of the Court:
¶2This was an action brought originally before a justice of the peace on a lost note. The defendant denied the execution of the note by an affidavit, and the jury found for the defendant.
¶3We do not consider the proof of the execution satisfactory. Only two of the witnesses had ever seen the defendant write, and they do not claim any familiarity with his handwriting, nor do they testify with any positiveness. They only remember having seen a note purporting to be signed by the defendant in the possession of plaintiff, but they do not pretend to have had their attention especially directed to the handwriting. On the other hand, the evidence offered by the defendant shows that in a conversation between the parties, after the note is alleged to have been given, the plaintiff' claimed defendant owed an old store account which defendant insisted was paid, but plaintiff said nothing of a note. The whole evidence is uncertain and unsatisfactory, and we are not disposed to disturb the finding of the jury, as being against the evidence.
¶4It is also insisted that the court erred in not permitting certain questions to be asked the witness Hanuth for the purpose of showing his acquaintance with the handwriting of defendant. He was asked if he had seen the signature of defendant to a certain other note, or to official returns made by him as constable. Ho proof was offered that the defendant had recognized the returns as signed by him, or that the note seen by the witness and purporting to have been signed by defendant was the same note referred to by defendant in his affidavit as having been given by him. The defendant not offering any further proof in connection with these questions, we cannot see that the refusal to permit them to be answered worked him any harm.
¶5The instructions given correctly laid down the law. The qualification of the second instruction asked by plaintiff may not have been required by the evidence, but it was correct as matter of law, and can have worked the plaintiff no prejudice.
¶6Judgment affirmed.