Lawrance v. Fussell

77 Pa. 460 | Pa. | 1875

Mr. Justice Mercue

delivered the opinion of the court,

The first objection in the assignment presents the question, whether copies of the notes were filed at such a time as to authorize the judgment to be taken for want of an affidavit of defence.

The Act of 28th March 1835, Pamph. L. 88, which authorizes a judgment to be taken for want of such affidavit, provides, “ that in all such cases no judgment shall be entered by virtue of this section, unless the said plaintiff shall, within two weeks after the return of the original process, file in the office of the prothonotary of the court * * * a copy of the instrument of writing, book entries, record, or claim, on -which action has been brought.”

In this case, copies of the notes declared on, were filed with the praecipe, which directed the summons to issue. Technically, they they were not filed “ after the return of the original process;” but, in fact, they were actually on file during the whole of those two weeks. The object of the law -was to designate a time beyond which a copy of the instrument could not be filed, so as to give a plaintiff the benefit of this section. A defendant was not to be required to examine the record every week for an indefinite length of time to ascertain the plaintiff’s claim, but was bound to take notice of what the record showed in those two weeks. He could in no wise be injured by the earlier filing of a copy. It gave him a longer period in which to prepare his affidavit. The filing of a copy then, with the praecipe, is within the true intent and spirit of the statute, requiring it to be filed within two weeks after the return of the original process.

The second objection is, that the record showed no such property in the notes, as to give the defendant in error a right of action. The facts set forth in the affidavit are substantially these: the defendant in error endorsed the notes over to the First National Bank, Media; which bank, in turn, endorsed them over to the First National Bank, Philadelphia, for account of First National Bank, Media; and there is no averment on record that the notes were returned to the ownership of the defendant in error. The court deemed this affidavit insufficient, and entered judgment against the plaintiff in error. An examination of the record fully sustains the affidavit. The only cause of action there averred is contained in a statement filed, which contains a copy of the notes, with the endorsements thereon, and an assertion that he claimed the amount of the notes with interest and costs. The record showed the ownership of the notes had once passed from him. There was no averment that he had paid or taken them up, or that he had in any manner acquired or held any interest or property therein.

If the notes had been endorsed in blank only, the possession of them would have been sufficient evidence of ownership. Although the defendant in error had once passed them away by endorsement and delivery, yet if he had regained the possession again, it would be prima; facie evidence that he had paid and taken them up. Weakly v. Bell et al., 9 Watts 273. Even if the endorsements subsequent to his had been in full, the weight of authority is, that the presumption would be the same: Morris v. Foreman, 1 Dall. 193; Dugan v. United States, 3 Wheat. 172. But if it be specially endorsed, its negotiability is at an end, and it becomes incapable of being sued upon by any one, except the special endorsee : Sigourney v. Lloyd, 8 B. & C. 622; 5 Bing. 525; Ancher v. Bank of England, Doug. 639; Treuttel v. Barandon, 8 Taunt. 100 ; Gorgerat et al. v. McCarty, 2 Dall. 144. The endorsement here is further qualified. This subsequent endorsement being made for the account of the endorser, was restrictive: Byles on Bills *121. A holder who takes anote which is restricted by a restrictive endorsement, cannot sue the drawer upon it: Id.

It is true, under the Act of Assembly, permitting a statement of a plaintiff’s claim to be filed, great exactness is not required, but the record should in some manner show, either by positive affirmance or legal presumption, a right of action in the plaintiff. This record is defective in both respects; therefore,

Judgment reversed, and a procedendo awarded.