Stanton v. Burge

Lumpkin, C. J. [1.] The first question made for the Court is, whether the plea of non est factram filed by the executrix of Thomas Burge, deceased, on the appeal was in time ? It is admitted that the law requires this plea to be filed at the first term after the writ is served; still, as the Code has adopted the broad provision of the Act of amendments, passed in 1853, which authorizes the plea to be amended at any stage of the case, I say it is not at all certain that the original party, if in life, to wit, Thomas Burge, could not file this plea on the appeal. I am inclined to think he could. But expressing no opinion upon this subject, we have no doubt that his- representative would be permitted to do so. She may not have come to a knowledge of this defence before. [2.] The second assertion is, that the representative could not file this plea. The rules of the Superior Court adopted by the Judges in convention, allow a representative to file this plea, — she swearing to the best of her knowledge and belief. [3.] The third point made in this bill of exce¡3tions is, as to the sufficiency of the affidavit. It is not attested. The plaintiff demurs to the plea on this account. Eor the purposes of this argument, the demurrer admits the truth of the statements in the plea. It purports to have been made in open Court, which means that it was verified in open Court, not that it was made out of Court, or in a room of the court house, but in open Court, that is, that the party was sworn by the Judge himself, or by the clerk, or some one else by his authority. In either event, the jurat would be sufficient. Perjury could be assigned on it; and this is the test of its sufficiency. [4.] The plaintiff objects to the charge of the Court. His honor, the presiding Judge who tried the case, instructed the-jury, that the plaintiff, for the purpose of rebutting the plea of non est factum, had, presumptively, to prove [438] that the signature to the note was genuine, and added, before the jury could find for the plaintiff, he should show to them by the testimony, with reasonable eertamty, that the note sued on was the act and deed of the defendant’s testator. Is there anything wrong in this ? If so, we are unable to discover it. [5.] It is complained that the verdict is contrary to evidence. In this case there was a conflict of testimony, to say the least of it. It may probably have been stronger for the plaintiff than for the defendant: men’s minds will differ upon this subject. But, unquestionably, there was proof enough offered to have authorized the jury to have found as they did. We cannot, upon this account, disturb their verdict. Upon a view of the whole case, we see no sufficient reason for reversing the judgment of the Court below: on the contrary, we affirm it.