Brown v. Jones

3 Port. 420 | Ala. | 1836

Collier, J.

The plaintiffs in error, to an action of assumpsit, in the County Court' of Tuskaloosa, pleaded — first, that, the promissory note, on which the action is brought, after the making of the same, was altered, without their knowledge or consent, bj adding thereto, the words, “ with interest from the date.” Second — the general issue: both of which pleas-were verified by the affidavit of Samuel Brown.

The defendant in error demurred to the first plea; and his demurrer was sustained.

The correctness of this decision is the only point presented by the assignment of errors; and this involves these enquiries—

1st. Was the plea well pleaded.

2d. Does it disclose available matter of defence.

1. It is objected, in as much as both defendants below, join in their pleas, that they should be verified by both, and that the oath of one of them is an insufficient verification.

The provision of the statute, under which these pleas are pleaded, declares, that any writing, (the-foundation of an action,) whether the same be under seal or not, shall be received as evidence of the debt or duty, for which it is given; and that it shall not be lawful to deny its execution, unless by plea, supported by the affidavit of the party pleading it.

A literal interpretation of the statute, would doubtless, .render necessary the affidavit of .all parties uniting in a plea, to deny the execution of á promissory note ; yet we can not believe, that either its intention or its language, require us thus to interpretit.

At common law, the pleas of non est factum, nil debet, or non assumpsit, according to the dignity of the writing sued on, and character of the action, put its execution in issue, and that too without affidavit of the truth of the plea. This rule of the common law, was found to be, here, productive of great inconvenience, and not unfrequently, of injustice. A plaintiff was obliged to continue his cause, to procure testimony to prove the execution of the writing sued on —a fact controverted only by plea: his counsel from an inability to 'continue, was often forced to a non-suit. To .remedy such a state of things as this, the statute was enacted,- requiring the plea to be accompanied by an affidavit: this affidavit is required, that it may appear prima facie, that the fact of execution is not causelessly denied. Arid this being quite as apparent where the plea is verified by one, as by all the defendants pleading it — we are satisfied that the verification of the plea is in compliance with the spirit of the statute.

It is true, that the defence proposed to be brought in under the first plea, was available under the second ; yet it does not follow, that for this reason, the demurrer was rightfully sustained. It is well settled, that a defendant may plead non est factum arid escrow, together ; though, the evidence allowable under the latter, may be given under the former. And this Court, in the case of Tindall vs. Bright,^a determined that a party may plead non est factum generally, and a special plea, that the name and seal of one of the obligors have been cancelled without his consent.

2. By the law, as it once stood, any alteration of a deed, even in an immaterial point, (if made by the obligee himself,) avoided it.^b But the rule is now otherwise. An immaterial alteration by the obligee, or a material change by a stranger, has no prejudicial effect upon the obligee’s rights; unless he has adopted either impliedly or expressly, such act of the stranger as his own.^c

Without any particular review of the authorities, it is enough to say, that an alteration of a • deed, in order to its avoidance, must be made in a material point, by the obligee himself, or some one interested, or else be'adopted by him, if made by a stranger.

The same rule which relates to deeds, is also applicable to promissory notes, and other writings.

Believing, then, the alteration to be material, and the plea to be good, as well as-to the manner of pleading it, as in the matter it discloses — we are of opinion that the judgment must be reversed, and the cause? remanded.

a Ala. Rep, 103.

b 2 Starkie, 476.

c 1 Gallison 69; 5Taun 707; IB. & B, 426 ; 4 Term R 320; 15 East, 29; 1Moorell4 5 B & C 269 8 D & R22 3 B & C 428 5 D & R 433 6 East 309; 5 M & S 223 12 East 471 15 East 415