True v. Dillon

138 Mass. 347 | Mass. | 1885

Devens, J.

Rule 43 of the Superior Court requires that “ a written answer shall be filed in this court, in all appeal cases, within thirty days after the entry of the appeal, unless the court shall otherwise order.”

In the Superior Court, the defendant filed an answer denying each and every allegation in the plaintiff’s writ and declaration, and an additional answer denying all such allegations, denying also that the plaintiff was the bearer of the note, and further averring that, if any evidence should be offered tending to show that she signed said note, she would then show that said note was obtained by false and fraudulent representations.

The Pub. Sts. c. 167, § 21, prescribe a rule of evidence and practice, rather than a rule of pleading. The production of a paper without evidence of its authenticity would not entitle the party producing it to put it in evidence. Warner v. Brooks, 14 Gray, 109. This section enacts that “ signatures to written instruments declared on or set forth as a cause of action, or as a ground of defence or set-off, shall be taken as admitted, unless the party sought to be charged thereby files in court, within the time allowed for an answer, a special denial of the genuineness thereof, and a demand that they shall be proved at the trial.” Even if this special denial and demand could be incorporated with an answer, it is different from an answer properly so called, and contemplates that there is an answer to which it relates. It is a notice that, under the pleadings, the opposing party must not rely upon the production of the paper declared on or set forth, but must prove the signature thereto. The object of the statute being to save the party relying on a written instrument the trouble and expense of proving the signature thereof, the adverse party compels him to make that proof by assuming the responsibility of this special denial and demand.

However much the party defendant may change his answer, either by addition or substitution, the plaintiff, so long as this denial and demand are not withdrawn, cannot rely upon the rule of evidence which the statute has provided for his benefit. The defendant had pleaded orally in the lower court, as he might do, but had filed in writing the special denial and demand. When he filed a new answer in the Superior Court, this special denial was not withdrawn. Having been seasonably filed in the lower court, it was transmitted to the Superior Court, and was properly before it. Pub. Sts. a'. 155, § 34. It did not require to be there again filed in order to deprive the plaintiff of the advantage he would have had in his proof, if it had not been filed. Manson v. Arnold, 126 Mass. 399. The case was without doubt to be tried in the Superior Court upon the issue there raised, but this special denial was directly germane to -that issue, and to the evidence by which that issue was to be sustained. The special denial and demand were in the form required by the statute. We are therefore of opinion that the presiding judge rightly ruled that it was necessary for the plaintiff to offer evidence in order to prove the genuineness of the signature of the note. Exceptions overruled.