Bell v. Foreman

1 Mich. N.P. 88

Opinion

By the Court,

Upson, J.

Under Circuit Court rule 79, “ upon the plea of the general issue in an action upon any written instrument * * * the plaintiff shall not he put to the proof of the execution of the instrument or of the handwriting of the defendant unless the defendant, or some one in his behalf, shall file .and serve a copy of an affidavit denying the same,” &c. “ Such affidavit shall be filed, when by the defendant, with the plea,’’ j&C.

In this case no affidavit denying the execution of the instrument or the handwriting of the defendant has been filed or served, and the defendant is, therefore, precluded from putting it in issue, as such evidence would at once put the plaintiffs to the proof of the same, which the rule says .shall not be done without the-filing and serving of the requisite affidavit. The evidence not being admissible, the motion must be denied. See 4 Mich., 506; 5 Mich., 26; 7 Mich., 468; 10 Mich., 116; 7 Blackford, 306; 7 Ind. Rep., 185, 306, 356, 594.