National Union Bank v. Marsh

| Vt. | Jan 15, 1874

The opinion of the court was delivered by

Redfigld, J.

This was assumpsit upon a promissory note. The defendant pleaded the general issue, with notice that he would prove, on trial, that the note declared on was a forgery. The pleas were not filed in time, by the rules of court, but by special leave of court, and within the time limited by the order of court. The plaintiff claims that the notice that the defendant would deny the execution of the note, not having been filed according to the “ rules of court,” the execution must be conceded by the defendant, as required by the rule. It is a necessary incident to the trial of causes, that the court should have power to allow pleadings to be made or modified, as shall best subserve justice. And when the discretion of the court has been exercised, it is not a ground of exception. The notice that the defendant, on trial, would prove the note a forgery, would seem a pretty distinct affirmation that the defendant disputed the genuineness of the signature, and the execution of the note.

II. We perceive no error in the ruling of the court as to Hubbell’s testimony. He liad never seen the defendant write; nor had ho corresponded with him, nor been in such business relation with him that he had knowledge of his signature. lie had seen what purported to be the defendant’s signature, but ho had no knowledge by which ho could test its genuineness. 2 Phil. Ev. 596, 600, 615 ; Brigham et al. v. Peters et al. 1 Gray, 141.

III. There was no error in refusing to direct a verdict for the plaintiff. The defendant was called by the plaintiff as a witness, and to prove an issue of which the plaintiff had the affirmative. When shown the signature, he testified, “ It looks like my handwriting ; it might be my handwriting, and it might be some imitation ” Again, being inquired of by the court, he said, “ It looks like my handwriting ; I should think it was.” And on cross-examination he said, in looking at the whole paper, “ I never signed any such paper.” It was clearly a question for the jury to determine whether the plaintiff had proved the due execution of the note. We find no error stated on the record, and the judgment of the county court is affirmed.