McCay, Judge.
1. We do not think it was proper for the judge to charge the jury as he did in this case. There was no evidence that the executrix knew the truth of this transaction, and' it was altogether an unfair inference which the judge authorized the jury to draw from her failure to go on the stand. It assumes that if she had made herself a witness, and told the truth, she would have shown this son had authority to make the note sued on in his father’s name. How does this appear ? She had by her sworn plea denied it, and the son denied it. Why should she go on the stand; any evidence she could have given in her own favor must necessarily- have been merely negative, since it is not possible she could know that the son did not get authority? He might have done so when she was not present. Her testimony, that as far as she knew he did not have authority, would have been incompetent. It was gratuitous, therefore, for the judge to assume that she with certainty knew the truth. Besides, we greatly doubt if the rule laid down by the judge is applicable to the case of a witness who is the party. Under this rule, it will be dangerous for a man to fail to put himself upon the stand, and the temptation to do so is great enough, in all conscience, without this addition to it. The plaintiff had a right to call her; why not put the presumption on him also ?
2. We think there was no error in the judge’s permitting the paper to be read. He did not by this decide it was proven; the issue was for the jury, and but very slight evidence was necessary to put 'the paper before them. Indeed, when the plea of non est faotum is the issue, we are not prepared to say that the judge has anything to do with even a prima faoie case.
Judgment reversed.
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