Johnson v. Wright ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

The right of appeal from the ruling in such case as the present, from the special to the General Term, seems to have been fully recognized and sanctioned by the General Term, as is shown by the case of the National Metropolitan Bank v. Barry, decided in October, 1889. And as the right of appeal in such cases has been held to exist,, by the General Term, we shall follow that ruling and entertain the present appeal.

It is not apparent upon what ground the motion for judgment under the rule was denied. It was stated in argument, that the affidavit to the declaration was deemed defective by the court, because it did not show that the stock ordered by. the defendant had in fact been delivered to her. But this is not an action on a contract for the sale and delivery of stock. The cause of action declared on, and that stated in the affidavits appended to the declaration, is the check of the defendant for $300, indorsed by the payee to the plaintiffs. There are to be found some authorities, it is true, that hold that there must be proof of the consideration for which a check is given, to entitle the holder to recover thereon. But that is not the law, as declared by the great preponderance of authority at this day. A negotiable check, such as that sued on in this case, is, in its principal characteristics and incidents, an inland bill of exchange, and it carries with it the presumptions that belong to that species of negotiable paper; and one of the principal incidents that belongs to such paper is,' that it imports consideration. Bull v. Bank of Kasson, 123 U. S., 105, 111; Rogers v. Durant, 140 U. S., 298, 301. Mr. Daniel, in his very excellent work on Negotiable Instruments, vol. 2, sec. 1652 (2d ed.), has summed up the law as resulting from the nature of the instrument, and the decided cases, thus: “ Whenever a check is negotiable, it is undoubtedly subject to the same principles which govern ordinary bills of exchange in respect to the right of the holder. In the first place, it is evidence of a valuable consideration as between the immediate parties thereto, and between the plaintiff and the drawer, when payable to bearer. In the second place, it may be transferred by indorsement, or by delivery without indorsement when payable to bearer. In the third place, when sued upon, the possession is prima facie evidence of title, and the plaintiff is presumed to be a bona fide holder for value, without notice of any defense existing between prior parties, and such defense’ cannot be pleaded against him. In the fourth place, even when it is proved that the real owner parted with it, or that the drawer drew it without consideration, the burden of proving bona fide ownership for value without notice will not devolve upon the holder; but when shown to have been drawn for an illegal consideration, or to have been obtained from the drawer by fraud or theft, the burden of proof is thrown upon the holder, and he must show a bona fide title in order to recover.

Here there is no allegation made in defense that the check was obtained by fraud or theft. But if such allegation had been made, the court could not look to it or take notice of it as a ground for refusing the judgment, in the absence of the verification of the facts alleged by the defendant, by affidavit filed with the plea. ' The rule 73 is a salutary one, and is a law to the court as well as to the suitors as long as it remains in force. It is intended to prevent the delay of justice, by the common expedient of resorting to sham or pretended defenses. It exacts nothing that is unreasonable from the parties; and if a defense be pleaded of what the defendant alleges as truth, and he is not willing to swear to it, it is not fair or reasonable to assume that he can get others to do what he declines to do himself; and hence the court is justified in assuming that the alleged defense is unfounded in fact, and in giving judgment to the plaintiff who has supported his claim by affidavit appended to the declaration.

We therefore think the court was in error in refusing to enter the judgment for the plaintiff under the rule; and we must reverse the ruling, and remand the cause), that judgment be entered on the motion of the plaintiff.

Ruling reversed and cause remanded.