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 *Page 105 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 CVI., § 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 orderand manner of trying causes and of pleading, of notices andall other matters regulating the practice and mode of conducting thebusiness 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 ofdefence. 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 *Page 106 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 heard 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 *Page 107 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 theobligation of the instrument by reason of fraud, duress or othersufficient 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. *Page 108