| Iowa | Apr 25, 1871
— There is nothing to show that we have all tbe evidence before us which was introduced on tbe trial in tbe circuit court. We cannot, therefore, say that tbe
The statute relied upon is chapter 28 -of the acts of the ninth general assembly (see laws of 1862, p. 30), which was enacted as a substitute for Revision, section 2967. “ When any action, defense, set-off. counterclaim, or cross demand is founded on a written instrument, which is referred to in any pleading, and the original or a copy thereof is annexed thereto (or copied therein), the signature thereto, or to any indorsement, shall be deemed genuine and admitted, unless the party whose signature it purports to be shall deny the same under oath in his pleading or in a writing to be filed,” etc. This statute it will be seen relates alone to the getvuvneness of the signature; while the pleadings in this case are grounded upon the idea that the instrument to which the defendant’s signature was made was not a promissory note, but some other instrument, as a receipt, testimonial of agency, or the like, which was susceptible of being altered, and was so altered as to make it a negotiable promissory note ; and that the plaintiff and others had confederated together to procure “personal obligations of men under false pretenses, misrepresentations and fraud.” To introduce testimony in support of these defenses did not require the pleading averring them to be under oath. The court did not find that' the signature of the defendant was not genuine, but that he did not sign the note. This finding is not necessarily inconsistent with the idea that the signature of the defendant was genuine; for it may have been signed to a receipt or other instrument, which had been so altered as to make it a note, to which it had not been signed.
The objection that the court received evidence tending to show that the instrument was not stamped becomes
Affirmed.