Schwarz v. Herrenkind

Caton, C. J.

The objection that the note was not indorsed by the payee, is not sustained in point of fact. We find on an inspection of the original note, which is attached to the record, that it was indorsed by the payee. All the objections to the power of attorney and to the judgment confessed were obviated, when that judgment was opened on the application of the defendant, and he was admitted to plead.

The note was sued upon as a simple instrument, and when produced on trial a seal was attached, and on that ground it was objected to by the defendant, to obviate which, the plaintiff introduced testimony tending to show that the seal had been attached since the commencement of the action, and without his knowledge or consent, and' this question was submitted to the jury, and we think properly. It was for the court to decide whether there was a seal to the note, and on inspection it was manifest there was ; but when the issue was presented whether the note had been altered, and when, and by whom, by the addition of the seal, that issue might well be submitted to the jury. Suppose the defendant had presented this issue by a plea of non est factum, would any one doubt that it was a question for the jury ? And if the same issue when presented by the defendant would have been proper for the jury, it was equally so when presented by the plaintiff. This issue was submitted to the jury under proper instructions, and they found it for the plaintiff, and we think properly.

It is hardly necessary to notice the technical objection, that the bill of exceptions does not show that the note was formally admitted in evidence by the court, and formally read to the jury. The result shows that it was in evidence before them, and they acted upon it, and we have seen that it was proper evidence for their consideration.

The judgment must be affirmed. Judgment affirmed.