
    Elnathan C. Fish, plaintiff in error, vs. Lorenzo D. Hale et al., defendants in error.
    By Section 62, page 439, and Section 115, page 449, Session Laws óf 1855, if the written instrument declared on, or set-off, , before a Justiee of the Peace, is filed at the timo of declaring, or pleading, and giving notice of set-off, its execution must be denied on oath at the time of such filing, and not after-wards, in order to put the party relying on it upon proof of its execution.
   Hale & Smith brought the action against Fish, in a Justice’s Court, where they declared on the following instrument:

$63. On or before tbe first day of October next, for value received, I promise to pay dharles C. Stevenson or bearer, sixty-three dollars with interest, being a balance due on settlement this day. E. C. Fish.

Sharon, April 25, 1855.

Fish pleaded tbe general issue. The note was filed with the Justice, and tbe cause adjourned.

On tbe second adjournment day, Fish made an affidavit denying tbe execution of tbe note, and asked leave to file the affidavit with tbe Justice, and amend tbe pleadings, so as to enable him to deny tbe execution of the note under oath. The Justice refused to receive his affidavit, or permit the amendment. The cause was again adjourned. On the trial the defendants in error were permitted to read the Uote in evidence, without any proof, against the objection of tbe plaintiff in error. No evidence was introduced on tbe part of tbe defendants in error. The counsel for Fish called a witness, who testified that he had seen Fish write and was acquainted with his handwriting, and then offered to prove that tbe signature to tbe note was not tbe genuine signature of Fisb, but the Justice refused to receive tbe testimony. No further evidence was introduced on either side, and the Court rendered judgment for the defendants in error, which, on certiorari to the Circuit Court, was there affirmed, and from that judgment tbe writ of error was taken.

Bealces & Marsh, for plaintiff in error.

Lawrence dé Oott, for defendants in error.

The only question, in fact, was whether, itnder tbe Justices’ Act of 1855 {/Sess. Z., 1855, ¶. 439, Sec. 62, and jt>. 449, Sec. 115), it was competent -for the defendant to deny on oath tbe execution of the written instrument declared on, at a time subsequent to the time of declaring or pleading, or giving notice of set-off) if such instrument shall be 'produced and filed with the Justice. . This Court held that it was not, and on the fourth day of March, 1857, ordered judgment of affirmance, in the form following: “ The record and proceedings in this cause having been brought to this Court by writ of error to tbe Circuit Court for tbe County of Washtenaw, and tbe same having been inspected, together .with the matters for error assigned, and it appearing thereupon that in said report and proceedings, or in the giving of judgment by tbe Circuit Court for the County of Washtenaw, there is no error; thereupon, it is considered and adjudged by this Court, that the judgment of the said Circuit Court for the County of Washtenaw be, and the same is hereby in all things affirmed, and that said defendant in error do recover his costs in this Court to be taxed, and that execution may issue therefor.”  