96 Pa. 135 | Pa. | 1880
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
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.