First National Bank v. Gregg & Co. ( 1875 )

Mr. Justice Williams

delivered the opinion of the court, January 6th 1876.

Brady & Co. did not become the owners of the note by the plaintiff’s endorsement and delivery of it to them for collection, and they had no right to pledge it, or direct its proceeds to be placed to their credit in payment of their indebtedness to the bank, is true that they were the apparent owners of the note, and, in the absence of notice of the plaintiffs’ title, the bank had the right to treat them as the real owners. If it had made advances or given new credits to Brady & Co. on the faith of the note, it would ^undoubtedly be entitled to retain the amount out of the proceeds. But just at this point the defence wholly fails. The affidavit of the cashier does not show that the bank made any advances or gave any new credits on the faith of the note. Nor does it show.that it incurred any liability, or did anything by which its condition is worse than it would have been if it had not received the note for collection and credit, or that it will suffer any loss or damage if the credit is not allowed. If so, the bank has clearly no equity which entitles it to withhold the proceeds from the owners of the note.

The averment in the supplemental affidavit, that to the best of the cashier’s knowledge and belief the plaintiffs were not the owners of the claim when due, but the same was owned by Brady & Co., must be disregarded. Its insufficiency is apparent. It does, not purport to be made on the affiant’s actual personal knowledge,! and it is defective in not setting forth the sources of his information, or asserting any expectation of ability to prove the facts alleged. - Judgment affirmed.