McCully v. Silverburgh

Caton, J. The objection that the similiter was not added to the plea of the general issue, is not founded on fact. The similiter appears by the record to have been added, though not signed by the plaintiffs’ attorneys. This was not necessary. The defendant may add the similiter to his plea concluding to the country, which forms a good issue, if not stricken out or objected to by the plaintiffs’ attorney. If he goes to trial upon such an issue, he is held to have adopted the act of the defendant’s attorney, who is precluded from objecting to the want of the signature of the plaintiffs’ attorney. Ror is there anything in the objection that no issue was formed upon, or disposition made of McOully’s separate plea of set-offi The plea was, in fact, a nullity and really had nothing to do with the case. The action was by an administrator, as such, against three defendants. The plea shows an indebtedness from the plaintiff below, for work and labor, etc., to one of the defendants, which he offered to set off against the claim sued for in behalf of an intestate estate, in two of the counts of the declaration, against the pleader and two other defendants, jointly. The plaintiff and the court were well justified in treating this as a sham plea by taking no notice of it. Had issue been taken on this plea and a verdict sustaining it, been found, it would have been the duty of the •court to have disregarded that portion of the verdict and rendered judgment for the plaintiff below. The only remaining question is, whether the court erred in deciding that the note had not been altered in a material part after its execution and delivery. By the agreement of the parties the original note has been brought up for our inspection, and has been examined by us in connection with the evidence on the point, and we unhesitatingly agree with the circuit court, that there has been no such alteration of the note as is alleged. The proof clearly shows that the note was drawn payable to Moses P. Silverburgh, and delivered to the plaintiff as payee, hut that his real name is Morris P. Silver-burgh. The original note still reads Moses, and can be read in no other way. Every letter in that word is still distinct as originally made. There is a scratch over the letter s, in that word, and a dot over the letter e, but admitting that these marks have been made on the paper since the note was made, and they do not alter its reading in the least. As before remarked, it'still reads Moses and. cannot be made to read Morris, or any other name. Had the marks alleged to have been made on the paper, been such as to have made it liable to be read differently than as originally written, the court would have been justified in finding that the note had been altered. As it is, we think the question of alteration was properly decided. The judgment must be affirmed. Judgment affirmed.