Lawrence v. Hammond , 4 App. D.C. 467 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

We are not called upon to decide the question on this appeal as to whether the declaration sets forth in technical form a good cause of action. That is a question to be raised and decided on demurrer, or motion in arrest of judgment, or by instruction on the trial, and not in a collateral way by an objection to the affidavit.

The first question is, whether the affidavit of the plaintiff is sufficient to gratify the rule. It is objected by the defendant, that the bills of exchange declared on are foreign bills of exchange, and that neither the declaration nor the affidavit avers or states that they were protested, and that protest is essential to hold either the drawer or indorser responsible on such bills. Neither the declaration nor the affidavit shows whether the bills of exchange were in fact foreign or inland ; and whether such an objection can be availed of in the manner here proposed, is a question that we need not decide. For assuming that the bills declared on are foreign bills, the want of protest may be excused; and among the several things that will operate to excuse such protest are, that the defendant, being the drawer, had no funds in the hands in the hands of the drawee, or had no right to draw the bill, or that he has admitted his liability on the bill, or has promised to pay the same. In such cases, a protest need not be proved. Chitty & Hume on Bills, 655; Bayley on Bills, 475 ; Gibbon v. Coggon, 2 Camp. 188. In the affidavit of the plaintiff, as we understand it, the case was brought within the principle by which the protest was excused. Indeed, the defendant does not claim to be exonerated because of the failure to have the bills protested, but because, as he alleges, he has paid and settled them, by substituting other obligations or promises for them. We are of opinion, therefore, that the plaintiff’s affidavit was sufficient.

Then, with respect to the affidavit of the defendant. The defendant admits an indebtedness to the plaintiff of $5,000, but he swears that such sum is not represented by, or owing from him, on the note and bills of exchange sued on. He says that the transactions between the plaintiff and himself have been frequently changed, and that his indebtedness to the plaintiff is now all merged in one single obligation of $5,000; and that the note and bills of exchange sued on in this case, are not valid and subsisting demands upon which the plaintiff is entitled to recover. If this defense be supported by evidence, it would, of course, defeat the action. It must be borne in mind, that while the affidavit required of the plaintiff to entitle him to summary judgment under the rule, may be determined to be insufficient, the party is left to pursue his action in the regular way to trial and judgment, if he be entitled to it. But with the defendant the rule operates very differently. If his affidavit of defense be adjudged insufficient for any cause, judgment goes against him in favor of the plaintiff, and he is concluded, without trial, and without an opportunity to produce his evidence to refute the claim of the plaintiff, or to make good his defense to the action. It would seem but reasonable, therefore, that the rule, and the affidavit of defense required by it, should be liberally construed in favor of the party’s right to make and maintain his defense. The object of the rule, as applied to the defendant, is supposed to be to prevent sham and fictitious defenses, to the hinderance and delay of justice. Therefore, when the affidavit is sufficient to satisfy the court of the good faith of the defendant in making his defense, great strictness ought not to be required. Otherwise, more litigation is produced, and delay and expense incurred, by appeals and otherwise, than can ever be prevented by the rule.

We are of opinion that the affidavit of the defendant is sufficient to entitle him to a trial of the cause, and we must, therefore, reverse the judgment.

Judgment reversed, with cost to appellant and cause remanded for trial in regular course.