Wren v. McLaren

48 Mich. 197 | Mich. | 1882

Campbell, J.

Mrs. Wren sued McLaren and George Wren on a promissory note dated at Corunna May 2, 1881, for $100, with interest at 8 per cent., payable in 90 days, .and purporting to be signed “ McLaren <& Wren.” George Wren was defaulted. McLaren pleaded the general issue, .and annexed to his plea an affidavit denying not only the •execution of the note by himself, but also its execution by any one having authority to bind him or to bind defendants jointly..

On the trial the circuit judge held that this affidavit was •not sufficient without an affidavit from Wren also, to allow .any defense to be introduced against the existence of the note as executed by defendants, and ordered judgment for plaintiff.

This affidavit was as broad as it could very well be made, .and distinctly denied any such execution by any one as would bind McLaren. To require one defendant to lose his ■defense unless his co-defendant will join him in an affidavit •of non-execution would subject him to such danger of fraud and collusion as would render such a rule as contained such a requirement unjust and arbitrary in the extreme. No-such meaning can be applied to the rule which requires a plea to be supported by affidavit; and such dangerous practice can receive no sanction. The regulation was intended to prevent sham defenses or surprises, and not to entrap men into responsibilities they never incurred. McCormick v. Bay City 23 Mich. 457; Anderson v. Walter 34 Mich. 114; Freeman v. Ellison 37 Mich. 459.

The affidavit was sufficient to put the execution and validity of the note in issue, and the court erred in holding-otherwise.

The judgment must be reversed with costs and a new trial' granted.

The other Justices concurred.