Pegg v. Bidleman

• Decision Date: 11 January 1858
• Citation: 5 Mich. 26
• Court: Michigan Supreme Court
• Parties: Samuel Pegg and Charles Swindle v. Robert Bidleman

5 Mich. 26

Samuel Pegg and Charles Swindle v. Robert Bidleman

Supreme Court of Michigan

January 11, 1858

Heard January 5, 1858

Case reserved from the Lenawee Circuit, and certified to this court as follows:

"The Circuit Court for the county of Lenawee: Samuel Pegg and Charles Swindle, plaintiffs in error, against Robert Bidleman, defendant in error.

"Certiorari to John Barber, a justice of the peace of the county of Lenawee.

"This cause coming on to be heard upon the return of the said justice, and the question arising upon said return being such as in the opinion of the Circuit Judge should be reserved for the opinion of the Supreme Court, the same is reserved accordingly.

"The said question is as follows: It appears by the return of the said justice that the action was assumpsit; that the suit was commenced in February, 1857, by summons, which was personally served on defendants; that, on the return day, the parties all appeared, and plaintiff produced and filed with the justice and declared verbally against defendants upon a promissory note, as follows:

"Plaintiff declared in assumpsit on promissory note made by S. Pegg & Co., of which the following is a true copy: '$ 196 62/100. Due A. Coles, or bearer, one hundred and ninety-six dollars and sixty-two cents, for value rec'd. Morenci Aug. 2d, 1856. S. Pegg & Co.' To plaintiff's damage, two hundred five 66-100 dollars. To which defendants pleaded verbally the general issue, without oath.

"That on a subsequent day to which the cause was adjourned, the parties again appeared, and plaintiff offered and read in evidence, without further proof, the said note; and there being no other evidence in the case, the said justice rendered judgment thereon, against defendants, for $ 205.69. And defendants there upon removed the cause to this court by certiorari, claiming that the justice erred in admitting said note in evidence, and rendering judgment thereon, without proof that defendants composed the firm of S. Pegg & Co. and executed the note.

"E H. C. Wilson,

Circuit Judge."

Judgment affirmed.

W. L. Greenly, for plaintiffs in error.

T. M. Cooley, for defendant in error.

OPINION

Christiancy J.:

The statute under which the question in this cause arises is in the following words:

"The execution of a written instrument filed with the justice shall not be denied, except under oath as hereinafter provided:" Sec. 3714, Compiled Laws.

"When any written instrument purporting to be executed by one of the parties is declared upon or set off, it may be used in evidence on the trial of the cause against such party without proving its execution, unless its execution be denied by oath at the time of declaring, or pleading, or giving notice of set-off, if such instrument shall be produced and filed with the justice:" Sec. 3767, Compiled Laws.

The plaintiffs in error (defendants below) contend that the statute did not, in this cause, "dispense with proof that the defendants composed the firm of S. Pegg & Co., and executed the note."

Without expressing any opinion touching the necessity of such further proof, in a case where the defendants do not appear, we think that where the defendants, as in this case, actually appear in court at the joining of the issue, and the plaintiff declares against them in their individual names, producing and filing the note or instrument declared upon, the defendants pleading the general issue without oath, are to be taken to admit, not only the execution of the note or...