Comly v. Bryan

The opinion of the Court was delivered by

Rogers, J.

The affidavit of defence required by the second section of the act of the 28th of February, 1835, must be construed most favourably for the plaintiff, as it is altogether probable that the defendant will in all cases state the nature and character of the defence, as strongly as the facts will justify. We can at any rate make no intendments for him. The Court have a right to expect a clear and distinct averment of the fact on which the defence must turn. These suits, which we consider together, are brought by the endorsees of a bill of exchange against the drawer and acceptor. The defendants’ seek to set off a debt due from Wood, Douglass & Co., to the drawer, on an allegation that the latter were at one time and now are the holders of the bill. It is an essential ingredient in the defence, that Wood, Douglass & Co. should have been the owners as well as the holders or possessors of the bill. But in this materia] allegation, the affidavits are singularly, and it would seem studiously defective. The first affidavit states, that the suit is instituted upon a draft drawn by Rising & Harris, of Nashville, on the deponent, and accepted here, &c.; that the said draft was endorsed to the plaintiffs; that after the same was due, it was forwarded by them to Douglass, Wood & Co., &c. Now what are we to understand from this part of the affidavit?. The legitimate inference would seem to be, not that the latter, but the plaintiffs, were the owners of the bill; and we may also infer, that the bill was sent by them in the ordinary course of business, to their correspondents for collection at Nashville, where the drawers resided. Unless this was believed to be so by the deponents, why adopt language so well calculated to produce this impression, when it was so easy to negative any such conclusion? In the supplemental' affidavit which Comly was permitted to file, and in the affidavits of- Rising & Harris, Wood, Douglass & Co. are spoken of as the holders of the bill; but it is remarkable, in connection with the terms before used, that it is not stated in what character they held it, whether as endorsees or owners, or as agents for collection. It is no unfair presumption that the defendants had reason to believe that they held it in the latter capacity; which will satisfactorily account for the ambiguous language of the affidavits. Comly states that he called at the counting-house of the plaintiffs, when they opened their account books and showed to the deponent an entry therein, in which the draft had been charged back by them to the endorsees, by whom it had been forwarded to them for collection. He omits to say how he. obtained the information that it was forwarded to the plaintiffs for collection by the endorsees, or what perhaps may be more material, he neglects to inform us who were the endorsees; and it is unfortunate for the defence that it could not be Wood, Douglass & Co., as their names no where appear upon the bill. Unless the latter were the owners of the bill, their offer not accepted by Rising & Harris to receive payment in any of their endorsements or other liabilities, amounts to nothing, unless it is satisfactorily shown, that they had authority from their principals to enter into such an engagement. v

Judgment affirmed.