The question arises on 'the construction of the act of assembly, 1802, which requires proof of the signature of the party to be charged.- The signature of'a marksman may be proved bj the peculiarity of his mark,, or his acknowledgment, if the witness, whose name is subscribed to the note, does not attend ; .and proof of the handwriting of such witness is not sufficient, if he be within the State. But if the subscribing witness be not within the State, proof of Ms handwriting is sufficient, from the necessity of the case.

Motion rejected.