3 Pa. Super. 59 | Pa. Super. Ct. | 1896
Opinion by
An accommodation indorsement of a negotiable promissory note is, prima facie, a loan of the indorser’s credit and it is no defence to an action by a bona fide holder for value to allege and show that as between the indorser and the maker the note was without consideration and that this was known to the indorsee; for to permit this would defeat the purpose for which he loaned his credit: Philler v. Patterson, 168 Pa. 468, 483; Peale v. Addicks, 174 Pa. 543, and cases there cited.
Nor is it a sufficient defense to an action against an indorser to allege that the indorsee has in his possession property of the maker upon which he has a lien for this and other debts, and that he has obtained judgment against the maker for those debts. He has a right to hold on to all his securities until he obtains satisfaction. Neither of these defenses requires further discussion.
The only question of any difficulty raised by the affidavit of defense is as to notice to the defendant of the dishonor of the note.
Where, in an action against an indorser of a promissory note, the.plaintiff files with his statement of claim a copy of the notary’s certificate of protest, and avers that all the steps were taken which are necessary to fix the liability of an indorser— such as due presentment, demand of payment at the proper time and place, and notice of dishonor — -it is not sufficient for the defendant to say in his affidavit of defense that he has not received notice. For it may be true that he did not actually receive notice and yet the holder may have done all that was necessary to give him notice. “ He must go further and state such facts as will justify the inference that no notice has been given or due diligence used: ” McConeghy v. Kirk, 68 Pa. 200; Moore v. Somerset,.6 W. & S. 262. But while the certificate
This probability may be strong or weak according to the circumstances of each particular case, but, as it is a presumption
We all concur therefore in the conclusion that it was error to enter judgment against him.
Judgment reversed and a procedendo awarded.