Chestnut Street National Bank v. Ellis

Opinion by

Mr. Chief Justice Sterrett,

To entitle a plaintiff to judgment for want of an affidavit of defence, or for want of a sufficient affidavit of defence, the statement of his demand under the act of May 25, 1887, must be self-sustaining; that is to say, it must set forth in clear and concise terms a good cause of action, by which is meant such averments of fact as, if not controverted, would entitle him to a verdict for the amount of his claim. In that respect, there is no substantial difference between a special count in a declaration, under the time-honored system of pleading, and its legislative substitute, — “a concise statement of the plaintiff’s demand,” etc, as required by the act of 1887. All the essential ingredients of a complete cause of action must affirmatively appear in the statement and exhibits which are made part thereof.

As was said in McKinney v. Crawford, 8 S. & R. 351: “ In an action by the indorsee against the indorser of a note, the declaration must aver that the note, on becoming due, was duly presented to the maker and that he refused to pa}*-, of which the defendant had notice.” The liability of the drawer or indorser of a bill of exchange or the indorser of a promissory note is only secondary. It depends on due presentation to the maker, demand of payment at the proper time and place, and notice of dishonor. These are necessary conditions or ingredients of an indorser’s absolute liability, unless waived by him; and a distinct averment of one or the other is essential to a good statement of “ demand ” under the act. The statement in this case contains neither. True, it speaks of “ costs of protest two dollars and five cents,” from which it might be inferred that the note in suit was protested for nonpayment; but when or how it was protested, whether at maturity or on the eve of bringing suit, etc., we are not informed. Averments that are essential to a complete, self-sustaining statement of demand must be so clear, distinct and positive that resort to anything like mere inference will be unnecessary.

It follows that the plaintiff’s statement in this case is fatally defective; and without reference to any of the averments of the affidavit of defence, it is not in a position to demand judgment.

But, waiving all that, the defendant in his affidavit avers in substance that no consideration was paid either by the maker of the note in suit, or by the plaintiff bank; that the latter “ paid nothing either for or on account of said note to any one,” but is a mere transferee without value, and holds the same merely for collection for account of De Saville, the maker, who is indebted to defendant “in large sums of money much in excess of the amount of said note.” For present purposes, we must assume that these averments of fact are true. If so, they constitute a good prima facie defence to the note in the hands of plaintiff bank.

Judgment reversed, and record remitted with a procedendo.