The opinion
The Court overruled the demurrer.
Kilty, C. J.,
contra.
Thereupon Mr. J. Lee moved the Court to strike out the judgment, and for leave to withdraw the demurrer, and to file general replications to the pleas, which was granted upon payment of the cost. Fitzhugh, J., doubting whether the demurrer could now be withdrawn.
Upon the trial of the issues, Mr. E. J. Lee asked Cleon Moore, the subscribing witness, whether his name was signed by himself, to which he answered in the affirmative, but was not asked as to the delivery of the deed. The attestation was thus: “ sealed and delivered in presence of Cleon Moore.”
Mr. Simms prayed the Court to instruct the jury that there was no evidence of the delivery of the deed.
The Court gave the instruction. It being no more than prov vo *194 ing the handwriting of the subscribing witness, while he was living, and within reach of the process of the Court.
Verdict for defendants.