M'Kee v. Executors of Myers

This is not the case of a note or order subscribed by the maker or drawer: in that case, if there be no subscribing witness, proof of hand writing is sufficient. Here the person who wrote the note, and subscribed the name, is uninterested, is the best witness, and ought to be here. However, as the objection might have been unexpected, appeared new, and might have been supposed to deserve less weight, than has been given to it ; it would be best to withdraw a juror by consent.

This was done : and this case was tried again, at December term, 1792 ; when Robert M'Kee attended, and proved this order to have been written and signed by him, at the request of Myers, and exactly as he dictated. It was also proved, that John Irwin was, at that time, in Philadelphia, and had in his hands certificates the property of Myers ; which John M'Kee wanted to pay for land warrants. But before John M'Kee arrived at Philadelphia with the order, John Irwin had left the city; and the order was never presented, till in the spring of the year 1790, after the death of Myers. The plaintiff also proved the payment of 14l. to one Murphy, in 1787 or 1788, on account of Myers, which, it was now asserted, on the part of the plaintiff, was the consideration for this order or part of it. But the defendants proved, that in the fall of the year 1789, J. M'Kee and E. Myers settled all their accounts, when there was a balance found due to Myers, for which M'Kee gave his note, with a receipt in full for all debts, dues, and demands ; which was produced, dated 16th November, 1789. Between March 1788, and the spring of 1790, J. M'Kee had often applied to J. Irwin, to do business for him, in the land office, and had often complained of disappointment in certificates—once wrote him a letter, and sent him certificates to do his business ; but never mentioned this order, till the spring of 1790, after the death of Myers.

*33President. This order appears to be but an authority to receive the certificates, and this, not being exercised in the life time of Myers, expired by his death, which transferred to his executors all his property in the certificates. As to the 14l. paid to Murphy, it was included in the settlement of accounts, and released by the receipt of 16th November, 1789. Therefore no interest remains in M'Kee, from the order, and there ought to be a verdict for the defendant.

The plaintiff then suffered a nonsuit.