
    Lake v. Cruikshank.
    Pleading! denial of signature to written instruments. The defendant in an action on a promissory note may, under a plea of non est factum, not under oath, show that he never signed the instrument sued on purporting to he, and as, a note, by showing that it was changed or altered to its present form from a receipt or the like. Chapter 28, laws of 1862, providing that the signature to a written instrument shall he deemed genuine unless denied under oath, relates alone to the genuineness of the signature, and has no application to a case like the present
    
      Appeal from, Lee Circmt Oowrt.
    
    Tuesday, April 25.
    Action at law by plaintiff as tbe holder, of a promissory note, made by tbe defendant “ to Alfred Ingalls or bearer, for $250, it being given for tbe profits on ten seeders.” Answer in general denial, failure of consideration, etc.; also, denying that be ever signed tbe note sued on as a note; also, by way of cross action, sets up an equitable claim for tbe surrender of tbe note as having been procured by conspiracy and fraud by tbe payee, tbe plaintiff and others. Eeply in denial. Tbe cause was tried to tbe court, who found that defendant did not sign tbe note or authorize any one to sign it for him. Judgment for defendant. Tbe plaintiff' appeals.
    
      W. B. Collins for tbe appellant.
    
      F. Semple and JD. F. Miller for tbe appellee.
   Cole, J.

— 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 finding by tbe court was contrary- to tbe evidence. But it is urged that since the defendant did not deny the execution of the note under oath, it was error to receive evidence tending to prove, and also error to find, that the defendant did not sign it.

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 wholly immaterial, since the court based its judgment upon the single fact that the defendant did not sign the note. • There is no finding that the paper was not properly stamped.

Affirmed.  