Hepburn v. Archer

Barrett, J. : There may be cases where a verified denial in the precise language of the statute would be sufficient; but such an affidavit will hardly do where the plaintiff sues upon a written instrument which should naturally be in his possession. For instance : If A sues B on a promissory note, it will not answer for A, when called upon in a proper case, to say, without explanation, that the instrument is not in his possession or under his control. Here the plaintiff claims, as the assignee of certain contracts which the defendant believes to be forgeries. Their deposit may properly be required. (Jackson v. Jones, 3 Cow., 17.) [537] The plaintiff should have the instruments in his possession or under his control if his complaint be true. That at least would be the natural presumption. If, however, they were really assigned to him without delivery, he should have frankly stated all the facts, and the court could then have judged whether the claim of inability to produce *was well founded. His reticence under the circumstances disclosed is suspicious, and his denial is consequently not what the Code requires, satisfactory. (Code of Civil Procedure, § 806.) We cannot permit any possible mental reservation, as to what constitutes possession or control, to deprive the defendant of a proper preparatory investigation on the suggestion of forgery or alteration. The order should be affirmed, with ten dollars costs, and disbursements of the appeal. Present — Davis, P. J., Bradt and Barrett, JJ. Order affirmed.