McPherson v. Allegheny National Bank

Mr. Justice Green

delivered the opinion of the court, November 22d 1880.

This was an action by the holder against the endorser of a negotiable promissory note. The plaintiff filed an affidavit of claim with a copy of the note, and alleged therein that the note was endorsed by the defendant and came to the plaintiff’s possession in the usual course of business ; that the note was not paid at maturity though presented at the place of payment thereon appointed, and concluded “ whereupon the same was protested, of all of which the defendant had due notice.” Although the averments of title, of presentment for payment, of non-payment and of notice thereof to the endorser, are somewhat meagre in this affidavit of claim, we think they are sufficient to put the defendant to an affidavit of defence in order to prevent judgment. An affidavit of defence was filed which was manifestly insufficient, but subsequently and before judgment, a supplemental affidavit was filed, and upon this the court below entered judgment against the defendant, for insufficiency we presume, as no opinion was filed. Amongst other things the supplemental affidavit contains the following averment: “ that due notice of non-payment was not given to affiant or the maker; that affiant did not receive any notice whatever, either verbal or in writing, actual or constructive, until writ or summons received from sheriff of suit pending on said note, and that was the first and only notice received by affiant in regard to said note.” This is a positive averment that due notice of non-payment was not given to the endorser, and also that he never received any notice of any kind until suit was brought. Now the affidavit of claim makes no particular and precise averment of notice of non-payment to the endorser. It does not state when or in what manner it was given, nor does it give any particulars of the protest. Its averment of notice is in the most general language, thus, ‘‘of all of which defendant had due notice.” Such an averment as this, if denied in the terms of the allegation, is sufficiently denied for the purposes of an affidavit of defence. The plaintiff, in his affidavit, says “ the defendant had due notice.” The defendant, in his affidavit, says “ due notice of non-payment was not given to affiant.” The substance of plaintiff’s allegation is that defendant had notice. The substance of defendant’s allegation is that no notice was given to him, and he supplements this by a more specific denial than was really required, by saying that he never received any notice whatever until suit brought. This is a full denial, in the very terms of the plaintiff’s allegation, of the vital fact of notice. It puts the plaintiff to proof of the notice before it can recover. It is difficult to see how the defendant could possibly have made any more specific denial than he did. Piad the plaintiff alleged that on a certain day named, a certain person, also named, had deposited in the proper post-office a letter addressed to the defendant, at his proper post-office, containing a written or printed notice that the note had been presented for payment at the proper place and time and was not paid, it might well have been claimed that these facts must have been negatived by a specific denial in the affidavit of defence. But without such averments it would be asking the impossible to require such denial, since the defendant could not know that such facts were averred against him. The court below could not, and we, certainly, do not, know how the fact of notice is to be made out. How then, in the face of the defendant’s denial, can any judgment be rendered against him on the present state of the record ? .

It is sufficient if an affidavit of defence sets forth facts showing a substantial prima facie defence, which can probably be established. It is not necessary for the defendant to meet by his oath every objection or argument against his case which fine critical skill may deduce : Leibersperger v. The Reading Savings Bank, 6 Casey 531. An affidavit of defence is sufficient, if it set forth in words or by necessary inference therefrom, the indispensable elements of a good defence: Selden v. Neemes, 7 Wright 421. An affidavit which puts the plaintiff upon proof of any matter dehors the instrument sued on, is sufficient to prevent judgment: Hunter v. Reilly, 12 Casey 509. We are clearly of opinion that the affidavit of defence was sufficient to put the plaintiff to proof, and that there was error in entering judgment against the defendant.

Judgment reversed, and procedendo awarded.