Ingraham vs. Dooley & al.

Ingraham vs. Dooley & al. The statute,Jan. 4, 1839, which makes the signature lo all bills, notes, &c. prima facie evidence of their execution, and requires the party denying such execution to deny the same under oath, being in force at the time of plea pleaded and issue joined in this suit, the plaintiff was entitled, to the benefit of it. The statute merely laws dawn a rule of evidence, and relates solely to the remedy. The proceedings should therefore be governed by the statute. This was air action of debt on note under seal, plea non est factum, verdict for defendant. The plaintiff excepts to the ruling of the Court below: 1st. That the issue having been joined before the act of the Legislature of the Territory of Iowa came into operation, that therefore said writing obligatory was inadmissible in evidence to the jury, under the provisions of said law, but the execution of said writing must be proved. 2d. The plaintiff having offered to prove, by the testimony of Gideon S. Bailey, that R. A. Gesner, the subscribing witness( was not, as he believed, in this Territory; the said witness having received a letter from said Gesner in May or June previous, dated in Wisconsin, in which he stated thathe could not be in Van Burén county in July as he intended, and that said Wit' ness had not seen said Gesner in the county of Van Burén since that time; and that he expected he would come to said Bailey’s house when he should come into said county; and it appeared by the subpoena on record that the said Gesner had been dnly summoned, the Court refused to receive such evidence or permit it to go the jury on the ground that the plaintiff had not used due diligence to obtain the testimony of said Gesner, and was guilty of laches in not issuing an attachment. 3d. The plaintiff then offered evidence to prove the handwriting of the defendants; but the Court refused to receive the same. 4th. That the plaintiff then offered evidence to prove the admission of the defendants that the said writing was their deed, and that they had executed the same; which evidence the Court refused to receive. The cause now came up on a writ of error, stating the above exceptions as causes of error. J. D. Learned, for plaintiff in error. Rorer, for defendant in error, cited Miller Sf al. vs. Dennett fy al., 6 Jf. Hamp. R. 109 — The Society vs. Wheeler 2 Gall. R. 139 — Colder vs. Bull 3 Dali. Penn. R. 388— Wagart vs. Winnich 3 Jf. Hamp. R. 437 — Dow vs. Jf orris ib. 419 — Bartlett vs. King 12 Mass. R. 537. [MAJORITY — Wilson, J.] By the Court Wilson, J. The decision of the Court below was given upon a mistaken state of facts. The first objection is that the Court refused to admit the writing obligatory, on which the suit was brought, to be read in evidence to the jury under the provisions of the statute of Iowa, approved January 4, 1839; because the issue upon the pleadings filed in said cause had been made up previous to the passage of said act, but required proof of the signature of the said writing obligatory. We find from an examination of the record in the case that the defendants’ plea was not pleaded, nor was issue joined until April term, 1839. The statute referred to authorizing the consideration of all bills, promissory notes, &c. as prima facie evidence of their execution, and requiring the party denying the same to make such denial under oath, took effect on the 1st of March, 1839, previous to issue being joined.— This statute being in force, the plaintiff was entitled to the benefit of it, and the Court below erred in requiring the signature of the note to be proved.— But to take the facts as presented by the bill of exceptions, we see nothing to distinguish the principle which would then be involved from that which controlled the decision in the case of Ballard vs. Ridgely & Billon, decided at the present term of this Court. The statute alluded to merely lays down a rule of evidence, and relates solely to the remedy; and, therefore, if the suit were commenced and the issue joined previous to the enactment of this statute, still the proceedings at the triql should have been governed by that statute which bad then taken effect. The si atute changes only the practice. Judgment below reversed, and cause remanded to Court below for further proceedings not inconsistent with this decision.