Baulsbury, Ch.,
announced the opinion of a majority of the court.
The suit below was brought to recover the amount alleged to be due on two promissory notes, copies of which had been filed by the plaintiff with his declaration. The defendant did not, at the time of filing his plea, file an affidavit denying the signature to the notes. The plaintiff below produced, and offered in evidence, the two promissory notes which were the cause of action, and copies of which had been filed with his declaration in the cause, and rested. The bill.of exceptions states that: “ The defendant, having offered evidence to show that after the making and delivery of the said notes by the defendant, and without his knowledge and consent, the said notes had been materially altered by the insertion of the words ‘ or order,’ and the erasure of the characters ‘ & Co.,’ which evidence was rejected by the court, because the defendant had not, at or before the time of filing his plea filed an affidavit denying the signature to said notes, or the obligation of the notes by reason of fraud, duress, or other sufcient legal cause, under Rule 7 of the rules of said court, and the statute in that behalf.”
This statement in the bill of exceptions necessarily requires from us an interpretation of the fifth section of chapter 106 of the code and also of said Rule 7 of the Superior Court, and of the determination of the question whether the rule is in harmony with the section as illustrative of it in respect to the word “ signature ” therein, or in addition to and enlargement of the requirement of that section in respect to the denial of the signature therein mentioned.
The fifth section referred to is as follows :
“ In any action brought upon any deed, bond, bill, note, or other instrument of writing, a copy of which shall have been filed with the declaration, the defendant not being an executor, or administrator, shall not, on the trial, be allowed to deny his signature or that of any other party to the instrument; and the execution of such instrument shall be taken to be admitted, unless the defendant shall have filed an affidavit denying the signature at the time of filing his plea, or within such further time as the court shall, on motion, allow.”
Rule 7 of the Superior Court, referred to, is as follows:
“ In any action brought upon any deed, bond, bill, note, or other instrument of writing, a copy of which shall have been filed with the declarations; the defendant not being an executor or administrator, shall not, on the trial, be allowed to deny bis signature, or that of any other party to the instrument; and the execution of such instrument shall be taken to be admitted unless the defendant shall have filed an affidavit denying the signature or the obligation of the instrument by reason of fraud, duress, or other sufficient legal cause, at the time of filing his plea, or, within such further time as the court shall, on motion, allow.”
It will be observed that the words, “ or the obligation of the instrument by reason of fraud, duress, or other sufficient legal cause,” in the rule are not to be found in the section. It is but reasonable to presume that the court in framing the rule meant to make it conformable to the section of the chapter of the code upon the same subject-matter and illustrative of it, and that by the words, “ or the obligation of the instrument by reason of fraud, duress, or other sufficient legal cause,” was meant that obligation of the instrument which was created by the free and voluntary signature of a defendant thereto, and that the words “ fraud ” and “ duress ” were placed in the rule as special examples, showing that a signature obtained under either of such circumstances was not the signature in law of the party charged with the obligation in respect to the instrument; and as there might be other sufficient legal cause why a signature to an instrument in the proper handwriting of a party sought to be charged with the obligation of the instrument by reason of such signature, was not in law his signature, the words, “ or other sufficient legal cause,” were also placed in the rule to avoid a particular enumeration of the reasons or causes which might determine what was an apparent signature to be in law no signature at all. In the opinion of the majority of this court, what was thus reasonably to be presumed, is in fact true; and the rule must be interpreted in harmony with the section, and as having relation to the legal signification of the word “ signature,” and not otherwise. The instrument is only legally executed when it is freely and voluntarily signed, and the words of the 5th section referred to—“and the execution of such instrument shall be taken to be admitted ”— relate to, and are in substance the same as the words “ signature to the instrument,” by which is meant a signature unaffected by reason of fraud, duress, or other sufficient legal cause, showing that the signature was not a free and voluntary one. A contrary interpretation of Rule 7, would not only be unreasonable in itself, but would be directly contradictory to the uniform practice of the Superior Court ever since the adoption of the rule. It would require every plea which a defendant could make in a suit upon any deed, bond, bill, note, or other instrument of writing to be filed under oath at the time of filing the plea. Even the pleas of non est factum, non-assumpsit, nil debit, accord and satisfaction, payment, release, set-off, and the Act of Limitations, would have to be accompanied by an affidavit, be cause any of these pleas, if true, would discharge a defendant from any obligation of the instrument, and no obligation arising from the signature of the instrument would rest upon a defendant by reason of his signature thereto, if he could avail himself of any of these pleas in any action brought upon the instrument. I do not presume that the records of the Superior Court furnish an example of such an affidavit being filed by adefendant at the time of filing any such pleas as above mentioned. The affidavit, in our opinion, is not required to any matter of defence, or in respect to anything arising or occurring after the execution of, or signature to the instrument. Material alteration of the instrument must necessarily occur after the execution or signature affixed. The word “ duress ” in the rule necessarily relates to the signature or signing of the instrument; as does also the word “fraud,” in obtaining the signature, and the words “other sufficient legal cause” must be interpreted as having relation to the same subject-matter to the signature as the words “ fraud ” and “ duress.” The words, “ the obligation of the instrument,” found in the rule of the court, must have reference to, necessarily, and must mean that obligation which arises solely from the free and voluntary signature of the instrument. They do not relate to the existing obligation to pay the amount secured to be paid by the instrument, nor to any obligation other than as hereinbefore mentioned existing at the time of filing the plea. If Rule 7 is to be otherwise interpreted than as we have indicated, the Superior Court would not have the power to add to the said 5th section the words found in Rule 7, to wit: the words, “ or the obligation of the instrument by reason of fraud, duress, or other sufficient legal cause.” To do so would amount to judicial legislation, and would not be judicial interpretation or exposition.
The Act of Assembly does not authorize the Superior Court to change by rule the law or principles of evidence. Chapter 106 of the Code is entitled “Of Pleading and Practice in Civil Actions.” It has no relation whatever as to what shall or shall not be evidence in civil actions. The first section confers upon the judges of the Superior Court power to make rules for regu lating pleadings, and is as follows: “The judges of the Superior Court or any three of them, shall have power, by any rules to be, from time to time by them made, in term or vacation, to make such alterations in the mode of pleading in said court, and in the mode of entering and transcribing pleadings, judgments and other proceedings in actions of law, and such regulations as to the payment of costs, and otherwise for carrying into effect the said alterations, as to them may seem expedient; Provided that no such rule shall have the effect of depriving any person of the power of pleading the general issue, and of giving the special matter in evidence, in any case where such power is or shall be given by Act of the General Assembly.” Not one word is said in this section in respect to the admission or rejection of evidence in civil actions, except the proviso that no rule made by the court shall have the effect of depriving any person of the power of giving the special matter in evidence under the general issue, in any case where such power is or shall be given by the Act of the General Assembly. Even the provision that a defendant shall not be allowed to deny his signature, or that of any other party, is not contained in the section conferring power upon the judges to make rules in reference to pleading and practice aforesaid. Even in this respect the judges would have had no authority to prescribe any rule but that prescribed by the fifth section before cited. The prohibition of the denial of the signature to the instrument is effective only by reason of that section, and no rule of court in respect to matters and things contained in that section, varying or adding to it, even if such rule has or should be made, would have any authority whatever. The learned judges who framed Rule 7 knew too well their duty, and the limitations upon judicial power to frame a rule which could reasonably bear the interpretation contended for by the counsel on behalf of the respondent in error.
Section 2, of Chapter 106, shows the general design of the power conferred upon the judges to make rules, and provides that such rules shall be so framed as to promote and require conciseness, brevity and plainness in pleading without regarding form further than is necessary or conducive to these objects. These are all the powers conferred upon the judges in respect to the making of rules, except that which is conferred by the third section of said chapter, which has no relation whatever to the admission or rejection of evidence. The first paragraph of this section is as follows: “ The said judges shall also have power by such rules to regulate the taking depositions or excepting thereto, the distribution of money in court, the order and manner of trying causes, of pleading, of notices and all other matters regulating the practice and mode of conducting the business of said court.” This section then provides that the judges shall, before the next term of the court, after the passage of the act, revise the rules of court, with a view to the attainment as far as practicable of improvements therein mentioned, none of which, however, have relation in any respect to the admission or exclusion of evidence.
It is unnecessary to notice the other ground of exception taken to the decision of the court below; we think, however, that leave to amend, as stated in the bill of exceptions, was a matter so properly in the reasonable discretion of the court below that its exercise by that court ought not to be reviewed here. For the reasons stated in considering the first exception, the rejection by the court of the evidence offered by the defendant below, to show that after the making and delivery of the notes by the defendant, the same had, without his knowledge and consent, been materially altered, we think- was erroneous, and for that reason that the judgment below should be reversed, and it is so ordered.
Wootten, J:
I regret that I have not been able to bring my opinion in accord with that of a majority of the court just read by the Chancellor, but I differ so essentially that a sense of duty constrains me to express my dissent.
It appears from the bill of exceptions that the action in the court below was on two promissory notes by George H. Hollis v. Isaac W. Vandergrift, the defence to which was alleged material alterations after the notes had been signed and delivered by the defendant without his knowledge or consent. At the trial; the plaintiff produced and offered in evidence the two promissory notes which were the cause of action and copies of which had been filed under the rule of court with the declaration and here the plaintiff rested his case. The defendant then offered evidence to show that after the making and delivery of the notes in question by the defendant the said notes had been materially altered by the insertion of the words “ or order ” and the erasure of the characters “ & Co.” This evidence was objected to by the plaintiff’s counsel on the ground that no affidavit had been filed as was required by the statute and the seventh rule of court. The statute to be found on pages 644, 645 of the Revised Code, Chapter CVL, § 1, entitled “ Of Pleading and Practice in Civil Actions,” declares that the judges of the Superior Court, or any three of them, shall have power, by any rules to be from time to time by them made, in term or vacation, to make such alterations in the mode of pleading in said court, and in the mode of entering and transcribing pleadings, judgments and other proceedings in actions of law, and such regulations as to the payment of costs and otherwise for carrying into effect the said alterations as to them may seem expedient.
The 3d section of the act declares that the said judges shall also have power by such rules to regulate the taking depositions or excepting thereto, the distribution of money in court, the order and manner of trying causes and of pleading, of notices and all other matters regulating the practice and mode of conducting the business of said court in all cases not expressly provided for by law.
The court was not only authorized to make such rules, but required by the statute to do so. Simplifying and shortening the pleadings and other proceedings. Presenting more distinctly the questions to be tried by a jury, particularly in some of the actions on promises, by a more full and precise statement in the declaration, or by a bill of particulars, and by a more definite statement of the ground of defence. The expediting the decision of causes and the diminishing of costs. The statute is a long one and very broad and extensive in its provisions, and, as I have said, not only authorizes the court to make rules regulating pleading and practice, but it obliges it to do so.
The court, under the statute and rule of court, ruled out the evidence offered by the defendant to show the alleged alterations of the notes to which ruling the defendant’s counsel excepted, and thus the question is presented to us for our decision.
A majority of this court reverse the judgment of the court below for the following reasons, if I understand the opinion correctly, not having read or beard it read before its delivery: First, that the words “ or the obligation of the instrument by reason of fraud, duress or other sufficient legal cause,” refer to the signature only, and the signature not being denied no affidavit, was necessary under either the statute or rule. The statute declares that “ In any action brought upon any check, bond, bill, note or other instrument of writing, a copy of which shall have been filed with the declaration, the defendant not being an executor or administrator, shall not on the trial be allowed to deny his signature or that of any other party to the instrument, and the execution of such instrument shall be taken to be admitted unless the defendant shall have filed an affidavit denying the signature.” And the rule of court adds : “ or the obligation of the instrument, by reason of fraud, duress or other sufficient legal cause at the time of filing his plea, or within such further time as the court shall on motion allow.” If these additional words constitute no enlargement of the statute or the rule following its language and mean nothing more than would be expressed without them, I can see no reason for their being in the rule or constituting any part of it. It is very clear to my mind that they do not and were not intended to apply to the signature at all, but to other distinct matters of defence named and specified by the words themselves, fraud, duress or other sufficient legal cause. A party might sign and affix his signature to an instrument under duress and a plea of duress would be a good one and an available defence if made out on the proof, but he could not swear it was not his signature, and a note or bond might be signed and executed willingly and freely, and the party-might be entirely absolved from its obligation by reason of some fraud, though he could not deny by affidavit his signature; and if he did his denial would be overcome by proof and such defence would not avail him, nor could he set up the defence of duress or fraud without an affidavit alleging it.
The denial of the signature of the instrument and the obligation of it by reason of duress, fraud and other legal cause, as mentioned in the rule of court, are separate and distinct lines of defence which to be made requires an affidavit denying the signature or alleging fraud, duress or other legal cause, as the case may be, and the rejection of evidence to prove the signature, fraud, duress or other legal cause would not, strictly speaking, be a question of evidence as a majority of the court seem to consider it, but one of pleading and practice as regulated by the court under its rules adopted by authority of law. But a majority of this court say that the court had no authority for making this seventh rule or for enlarging the statute by the words “ or the obligation of the instrument by reason of fraud, duress or other sufficient cause.” This announcement, I must confess, fell upon my ears with some surprise with the statute before me and from which I have quoted largely, authorizing the court to make rules for the purposes mentioned and so fully described, and when I remember, too, and call to mind the fact that this rule is one of the first adopted and is more than half as old as the court itself and the constitution under which it was organized, and still further recalling to my mind the fact that it was made and adopted by such judges as Chancellor Johns, Chief Justice Booth, Judge Harrington and the other associates then on the bench. These gentlemen were doubtless distinguished in their profession, conversant with the whole subject, and one of them at least having had much to do with the preparation and enactment of the statutes in reference to pleading, practice and amendments.
This court does not differ with the court below as to the question of amendment presented by the bill of exceptions and dwelt largely upon in the argument, therefore further notice of that question is unnecessary.
Not having been able to see any error in the judgment of the court below, I think it ought to be affirmed.