BENEDICT v. MAYNARD et al., 3 F. Cas. 180

OPINION OF THE COURT. This action is brought on a covenant to pay money. On the cause being called, a motion ivas made by defendants to add an affidavit, denying their signatures, which was opposed by the plaintiff’s counsel. The court overruled the motion. The affidavit should have accompanied the plea when filed. To permit it now to be filed, would be a surprise on the plaintiff; he alleges his witnesses, by whom the instrument can be proved, have not been summoned, as the execution of the instrument was not denied.

The instrument being offered in evidence, objection to it was made, that there was a variance between it and the one stated in the declaration, in this: that Maynard in the instrument, appears to have signed it as president; the word president appears to have been stricken out The oyer gives the signature without the designation of president. It was also objected that the instrument was drawn for several individuals who have not executed it. The signatures, as they appear on the face of the-instrument, are admitted by the pleading.

If the defendants desired to take advantage of any defect of execution, they should have pleaded non est factum, and filed, with the plea, an affidavit of its truth. The word president being stricken out, the court will presume, from the admission of the pleading, that it was so stricken out, at or before it was signed. The plaintiff proposed to read the declaration and oyer, and not produce the original instrument; but the court said it was 'unnecessary; the original instrument was admitted by the pleading, and the instrument was truly set forth in the declaration, and' copy of the instrument annexed to it.

With the assent of the parties, the jury found a verdict for $9000. Judgment.