Eccleston, J.,
delivered the opinion of the court.
J. Noble Stonestreet died intestate, seized of real and personal estate, leaving three children, the testatrix of the appellee being one of them.
Evidence was given for the purpose of sustaining the plaintiff’s claim, under the insimul computasset count. The defendants, (the appellants,) then offered to prove, that in 1832, Nicholas Stonestreet was appointed administrator of J. N. Stonestreet, and died in 1838. That in September 1833, the said N. Stonestreet entered into a contract with the defendants’ testator, agreeing to sell him the farm of the late J. N. Stonestreet. That part of the purchase money was paid. And after the death of N. Stonestreet, all matters in controversy between his estate and the children of J. N. Stonestreet were referred, under an order of the orphans court, with the consent of F. Neal, as guardian to the children, and the administratrix of N. Stonestreet. Under this reference an award was made, a certified copy of -which was offered in evidence. The defendants then proposed to give evidence, by one of the arbitrators, for the purpose of shewing, that by the award, the plaintiff’s testatrix had been allowed, as a set-off against the claim of N. Stonestreet, the money which in this action is sought to be recovered from the estate of George Dement. Upon the objection of the plaintiff, the court refused to admit the award, and also the testimony of the arbitrator, which refusal is the ground of the first exception.
[123]*123The copy of the award is certified by the register of wills, as having been taken from the records of his office, but there is no evidence whatever that it was approved by the court. The want of this approval, it has been contended, is dispensed with, because the parties have ratified the award. The ratification here alluded to, is in the following words: “We, the undersigned, hereby agree and consent, that the within award be finally ratified and confirmed by the court, offering no objection whatever to the same.” This is signed by Francis Neal, as agent for Catharine Stonestreet, and by other persons.
In argument, many objections were urged against the propriety of receiving this evidence. The want of a proper ratification of the award, we consider sufficient to justify its rejection. When arbitrators, appointed under an order of the orphans court, have made their decision and reduced it to writing, with their names and seals regularly affixed, it is still void of any effect as an award, if not ratified by the court; unless, perhaps, such defect may be cured by the act of the parties. Act of 1834, ch. 228, sec. 2. In the present instance, however, the name of the plaintiff’s testatrix is not signed by herself, but by one professing to be her agent; when there is an entire absence of any proof of his authority to act for her. But it has been contended, that the award should have been admitted to go to tire jury; because the defendants might then have shewn that Catharine Stoneslreet, herself, had sanctioned or confirmed it, after arrival at age, or that she constituted F. Neal her agent for that purpose. This we cannot assent to; for the reason that awards, like other instruments of writing which arc to be used in evidence, must first be shewn, by prima facie proof, at least, to have all the formalities requisite to give them legal existence. In the case of Trasher vs. Everhart, 3 G. & J., 243, the Court of Appeals recognize the doctrine, that when a deed or other instrument of writing is produced, the first step to be taken is, to prove to the court its execution, and then it will be admitted in evidence. But in case the preliminary proof creates a doubt as to the execution, then the court will let the instm[124]*124ment go to the jury, with the evidence on the point of execution, with an instruction, that if they believe it was executed, they are to receive it as evidence, otherwise they must reject it. The argument on the part of the defendants concedes, that there was no proof of any confirmation of the award by the orphans court, and none offered as to the agency of F. Neal. The court below, therefore, could not do otherwise than reject the award. And such a rejection, necessarily, rendered the testimony of the arbitrator inadmissible, that being designed to prove what was allowed in the award.
In the argument of one of the defendant’s counsel it is said, the court erred in rejecting the testimony offered to prove the receipt of the purchase money by Nicholas Stonestreet, for the land of plaintiff’s testatrix.
In stating the testimony offered by the defendants, the contract in regard to the sale of land between N. Stonestreet and Q. Dement, is set forth, together with the receipts endorsed thereon. It likewise appears they offered to prove that their testator paid to said Stonestreet the payments endorsed on the contract. The exception shews that all the evidence offered by the defendants was rejected by the court, except the said contract and the receipts endorsed upon it; which were not objected to by the plaintiff’s counsel. The proof of those payments, so rejected, was not relevant to the issue. N. Stonestreet had no authority to sell the land owned by the children of J. N. Stonestreet. And therefore, payment of the purchase money, or part thereof, to him by Dement, could be no bar to the claim of the plaintiffs’ testatrix. Her land had been held and used by Dement for two or three years under a contract of sale, which could give him no title whatever. With a knowledge of the circumstances, after the payments made under the sale, he acknowledged his liability to the plaintiffs’ testatrix, and promised to pay. This promise, it has been contended was qualified by an agreement in regard to the giving of a note and assigning it, which defeated the plaintiffs’ right of recovery in this action. But it will be seen in the second and third exceptions, [125]*125that the court did not sustain this view of the matter, and we are not disposed to reverse their decisions; assuming however, that proof of the payments was proper on the part of the defendants, they had the benefit of it, in the receipts which were admitted in evidence without objection.
At June term 1850, in a suit in which Edward N. Stone-street was plaintiff, and the appellees in this case were defendants, the Court of Appeals decided, that the testimony was pertinent to one of the issues, and should have been submitted to the jury. The evidence on which this opinion was founded, is precisely the same as that which is presented for our consideration by the prayers in the second and third exceptions, with the following additional statement by the witness, W. B. Stone. “In my testimony, as stated in the record, there is an omission of the consideration of the assignment of Dement’s notes to Col. Stonestreet’s admx., in said testimony mentioned. The facts omitted are, according to my recollection, that Mr. Dement had claims against Col. Stone-street’s estate, growing out of the private sale spoken of. Col. Stonestreet’s administratrix had claims against the guardian of Noble and Catharine Stonestreet, to a large amount, to settle these claims against said guardian, pro tanto, and to enable Mr. Dement to settle, also, his claims against Col. Stonestreet’s estate, were the causes and considerations of the agreement to assign the notes, when given, as mentioned. Since that time I believe all claims of Col. Stonestreet’s administratrix, against the said guardian, w'ere closed and settled.”
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Eccleston, J.,
delivered the opinion of the court.
J. Noble Stonestreet died intestate, seized of real and personal estate, leaving three children, the testatrix of the appellee being one of them.
Evidence was given for the purpose of sustaining the plaintiff’s claim, under the insimul computasset count. The defendants, (the appellants,) then offered to prove, that in 1832, Nicholas Stonestreet was appointed administrator of J. N. Stonestreet, and died in 1838. That in September 1833, the said N. Stonestreet entered into a contract with the defendants’ testator, agreeing to sell him the farm of the late J. N. Stonestreet. That part of the purchase money was paid. And after the death of N. Stonestreet, all matters in controversy between his estate and the children of J. N. Stonestreet were referred, under an order of the orphans court, with the consent of F. Neal, as guardian to the children, and the administratrix of N. Stonestreet. Under this reference an award was made, a certified copy of -which was offered in evidence. The defendants then proposed to give evidence, by one of the arbitrators, for the purpose of shewing, that by the award, the plaintiff’s testatrix had been allowed, as a set-off against the claim of N. Stonestreet, the money which in this action is sought to be recovered from the estate of George Dement. Upon the objection of the plaintiff, the court refused to admit the award, and also the testimony of the arbitrator, which refusal is the ground of the first exception.
[123]*123The copy of the award is certified by the register of wills, as having been taken from the records of his office, but there is no evidence whatever that it was approved by the court. The want of this approval, it has been contended, is dispensed with, because the parties have ratified the award. The ratification here alluded to, is in the following words: “We, the undersigned, hereby agree and consent, that the within award be finally ratified and confirmed by the court, offering no objection whatever to the same.” This is signed by Francis Neal, as agent for Catharine Stonestreet, and by other persons.
In argument, many objections were urged against the propriety of receiving this evidence. The want of a proper ratification of the award, we consider sufficient to justify its rejection. When arbitrators, appointed under an order of the orphans court, have made their decision and reduced it to writing, with their names and seals regularly affixed, it is still void of any effect as an award, if not ratified by the court; unless, perhaps, such defect may be cured by the act of the parties. Act of 1834, ch. 228, sec. 2. In the present instance, however, the name of the plaintiff’s testatrix is not signed by herself, but by one professing to be her agent; when there is an entire absence of any proof of his authority to act for her. But it has been contended, that the award should have been admitted to go to tire jury; because the defendants might then have shewn that Catharine Stoneslreet, herself, had sanctioned or confirmed it, after arrival at age, or that she constituted F. Neal her agent for that purpose. This we cannot assent to; for the reason that awards, like other instruments of writing which arc to be used in evidence, must first be shewn, by prima facie proof, at least, to have all the formalities requisite to give them legal existence. In the case of Trasher vs. Everhart, 3 G. & J., 243, the Court of Appeals recognize the doctrine, that when a deed or other instrument of writing is produced, the first step to be taken is, to prove to the court its execution, and then it will be admitted in evidence. But in case the preliminary proof creates a doubt as to the execution, then the court will let the instm[124]*124ment go to the jury, with the evidence on the point of execution, with an instruction, that if they believe it was executed, they are to receive it as evidence, otherwise they must reject it. The argument on the part of the defendants concedes, that there was no proof of any confirmation of the award by the orphans court, and none offered as to the agency of F. Neal. The court below, therefore, could not do otherwise than reject the award. And such a rejection, necessarily, rendered the testimony of the arbitrator inadmissible, that being designed to prove what was allowed in the award.
In the argument of one of the defendant’s counsel it is said, the court erred in rejecting the testimony offered to prove the receipt of the purchase money by Nicholas Stonestreet, for the land of plaintiff’s testatrix.
In stating the testimony offered by the defendants, the contract in regard to the sale of land between N. Stonestreet and Q. Dement, is set forth, together with the receipts endorsed thereon. It likewise appears they offered to prove that their testator paid to said Stonestreet the payments endorsed on the contract. The exception shews that all the evidence offered by the defendants was rejected by the court, except the said contract and the receipts endorsed upon it; which were not objected to by the plaintiff’s counsel. The proof of those payments, so rejected, was not relevant to the issue. N. Stonestreet had no authority to sell the land owned by the children of J. N. Stonestreet. And therefore, payment of the purchase money, or part thereof, to him by Dement, could be no bar to the claim of the plaintiffs’ testatrix. Her land had been held and used by Dement for two or three years under a contract of sale, which could give him no title whatever. With a knowledge of the circumstances, after the payments made under the sale, he acknowledged his liability to the plaintiffs’ testatrix, and promised to pay. This promise, it has been contended was qualified by an agreement in regard to the giving of a note and assigning it, which defeated the plaintiffs’ right of recovery in this action. But it will be seen in the second and third exceptions, [125]*125that the court did not sustain this view of the matter, and we are not disposed to reverse their decisions; assuming however, that proof of the payments was proper on the part of the defendants, they had the benefit of it, in the receipts which were admitted in evidence without objection.
At June term 1850, in a suit in which Edward N. Stone-street was plaintiff, and the appellees in this case were defendants, the Court of Appeals decided, that the testimony was pertinent to one of the issues, and should have been submitted to the jury. The evidence on which this opinion was founded, is precisely the same as that which is presented for our consideration by the prayers in the second and third exceptions, with the following additional statement by the witness, W. B. Stone. “In my testimony, as stated in the record, there is an omission of the consideration of the assignment of Dement’s notes to Col. Stonestreet’s admx., in said testimony mentioned. The facts omitted are, according to my recollection, that Mr. Dement had claims against Col. Stone-street’s estate, growing out of the private sale spoken of. Col. Stonestreet’s administratrix had claims against the guardian of Noble and Catharine Stonestreet, to a large amount, to settle these claims against said guardian, pro tanto, and to enable Mr. Dement to settle, also, his claims against Col. Stonestreet’s estate, were the causes and considerations of the agreement to assign the notes, when given, as mentioned. Since that time I believe all claims of Col. Stonestreet’s administratrix, against the said guardian, w'ere closed and settled.”
The nar in the former case contained two counts only, one for money had and received. The other on an insimul comfufasset. In this suit the nar likewise has two similar counts and none other.
We do not perceive that the additional testimony mentioned above, can have any material influence or effect upon the question submitted to us by the prayer of the defendants. And if the Court of Appeals were right in deciding that the testimony in the other case was pertinent to the issue, it is [126]*126difficult to see how the court below could have given the instruction asked for in the second exception. The court are there called upon to say to the jury, that if they should find from the evidence that the defendant’s testator agreed to execute his note to the guardian of plaintiff’s testatrix, upon the understanding, and in consideration, that the said note should be assigned to the administrator of Nicholas Stone-street, in order that the said testator might off-set against said note the claims which he had against said Nicholas Stonestreet, then the plaintiff could not recover, unless the jury should find there was an accounting together, and acknowledgment of the indebtedness, separate and distinct from said agreement.
To authorise the opinion given by the appellate court, they must have assumed, that if the jury should believe the testimony of Wm. B. Stone, in relation to the conversation between him and George Dement, the same was “legally sufficient” to prove such an acknowledgment of indebtedness on his part as would support the claim of the plaintiff, notwithstanding the arrangement as to the giving of the note, and the assignment thereof. The issue to which the court said the testimony was pertinent, must of course have been that of the insimul computasset. The whole of the evidence upon the point under consideration, comes from a single witness, and arises out of one conversation. There is therefore no conflicting testimony or contrariety of proof from which the jury might be called upon to draw different conclusions or inferences. The Court of Appeals having virtually said there was no such special agreement as would prevent the plaintiff from recovering in the former suit, upon the insimul computasset count, how could the court below grant the prayer of the defendants ? It is based upon the hypothesis that the testimony is sufficient to prove such a special agreement, as will preclude the plaintiff from recovering, unless he can shew an accounting and acknowledgment, separate and dis-distinct from said agreement. And this, notwithstanding the decision that the same testimony is pertinent to the insimul [127]*127compulassel count. We therefore think the prayer of the defendants was properly refused.
In the third exception, the court instructed the jury that if before any consideration or agreement about a note, the defendant’s intestate acknowledged his indebtedness to the plaintiff and promised to pay the amount, the plaintiff was entitled to recover, notwithstanding that after such acknowledgment and promise, it -was agreed in the same conversation, at the suggestion of the witness, that a note should be given for the amount, and that said note when given, should be assigned to the administrator of N. Stonestreet.
From what has been said in relation to the second exception, it necessarily follows, that we concur with the court below in this.
Judgment affirmed.