Woods v. Watkins

40 Pa. 458 | Pa. | 1861

The opinion of the court was delivered,

by Read, J.

. There is nothing in the objection to the want of regularity, on the part of the plaintiff below, in not complying with the rule of court. He filed with his prceeipe a declaration, a special affidavit stating the amount verily believed to be due from the defendant, and copies of the promissory notes on which the action was brought. This is all the rule required, and the affidavit was properly sworn to before a proper officer.

The affidavit of defence is evasive, and studiously avoids stating what it evidently intends the court shall believe is its real meaning, and yet in such a manner as not to be the subject of an indictment for perjury. The defendant swears “ that he has carefully examined the notes upon which the claim against him is sought to be established,” conveying distinctly the idea that he has examined the original notes; “ and that he has no recollection whatever of having ever signed the same, or delivered the same to the plaintiff,” not saying whether the signatures to the notes are his or not, which he clearly ought to have done, but leaving it open, upon a trial, for him to allege they were forgeries.

This is not a compliance with the rule that the defendant should state in his affidavit of defence, “specifically and at length the nature and character of the same,” nor does the allegation of “no consideration” following it, remedy this; for there is no account of how these notes came into the possession of the plaintiff, or in what way or manner the want of consideration arose. There is nothing curing this in the subsequent part of the affidavit, and, on the other hand, we have the positive oath of the plaintiff.

Judgment affirmed,