BOND, BROTHER & CO. v. ALEXANDER R. SHEPHERD

BOND, BROTHER & CO. v. ALEXANDER R. SHEPHERD. At Law. — Nos. 18,026 and 18,418. In an affidavit filed by plaintiff in an action against an endorser of a promissory note, under rule 73, he must set out a statement of the facts necessary to show defendant’s liability as endorser; such as that payment had been demanded of the maker, and that notice thereof liad been given to defendant. STATEMENT OE THE CASE. The seventy-third general rule of the court provides that in any action arising ex contractu, if the plaintiff ór his agent shall have filed at the time of bringing his action an affidavit setting out distinctly his cause of action and the sum he claims to be due, exclusive of all set-offs and just grounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with interest and costs, unless the defendant shall file along with his plea an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and especially stating also in precise and distinct terms the grounds of the defense, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part. The action is brought in each case to recover the amount of a promissory note from the defendant as endorser thereon, and there was filed with the declaration an affidavit of the plaintiff John K. Bond, which reads as follows: “ That the amount of said note, to wit, one thousand dollars, with interest at nine per cent, from September 14,1876, is due from the defendant, the endorser thereof, to the plaintiffs, exclusive of all set-offs and just grounds of defense; that no part of said note has been paid, and no interest thereon has been paid by the defendant or by the maker of said note.” The defendant filed three pleas: first, non assumpsit; second, that he did not endorse the note; third, that he did not receive notice of dishonor. These pleas were not supported by affidavit. The court below gave judgment in each case for want of affidavit of defense, from which judgments the defendant appealed to this court. Appleby Edmmston, for plaintiffs. William F. Mattingly, for defendant. _ The plaintiff’, under the law and rule of court, before he can require a defendant to disclose his defense under oath, and deprive him of his constitutional right of trial by jury, must himself present to the court at the time when suit is brought aprima-facie case in law entitling him to judgment manifested by his affidavit. The plaintiff’s affidavits in these cases do not make out such a case. They do not show' that payment w’as demanded of the maker, or that any notice of dishonor was given to the defendant. The affidavit is such that any holder of a promissory note could make in a suit against an endorser where confessedly there was no demand and notice of nonpayment. The protest filed with the note in number 18,026 does not show on its face that any notice of dishonor v'as given. It does show that no demand was made of the maker, or that any inquiry was made to ascertain his residence or .place of business. In number 18,418 the original protest was not filed, but merely what purports to be a copy. It also shows that no demand was made of the maker, and does not show any legal excuse for the want of such demaud. The plaintiff’s affidavit shows that the defendant was merely an accommodation endorser. As such, he has the right to insist that before judgment is entered against him in the face of his pleas, without a trial by jury, every obligation imposed by law upon the plaintiff to hold an endorser liable to judgment has been complied with, and is presented to the court under the obligation of an ’ oath. [MAJORITY — Cartter, Ch. J.,] Cartter, Ch. J., delivered the opinion of the court, substantially as follows: The point raised in this case presents an interesting question under our rules of practice. A judgment was allowed upon an application to the court below because the defendant did not file along with his pleas an affidavit setting forth the grounds of his defense. The actions were brought upon promissory notes, and were therefore within the meaning of the seventy-third rule. At the time of bringing his actions the plaintiff had filed an affidavit in each ease setting out his cause of action. The precise point presented is, whether it was sufficient to entitle him to the judgment in question. Under the rule the cause of action must be distinctly set out in the affidavit either by the plaintiff or his agent. This of course requires a statement of the facts necessary to show defendant’s liability. In these cases the actions are against the defendant as an endorser of a promissory note, and the affidavit does not state that payment had been demanded of the maker and uotice thereof given to the endorser; nor is. there any excuse alleged why these formalities were dispensed' with. The law is clear that a demand on the maker is necessary in order to fix the liability of the endorser, and so essential is this to the cause of action in such case that it must be alleged and proved before the plaintiff can recover. There is an allegation to this effect in the declarations, but the affidavits do not purport to verify them. Now, the court are of opinion that if the plaintiff would avail himself of the rule, and deprive the defendant of a trial by jury, he must distinctly show the facts upon which the defendant is to be liable as endorser, and he ought to state them explicitly and with such certainty as to show the particular cause of action upon which he relies. The affidavit does not state a cause of action against the defendant as endorser, and is, therefore, insufficient to entitle him to a judgment by default. The defendant was not called upon to swear to his defense. The judgments are reversed and the cases remanded for trial. Ohn, J., dissented.