Hunter v. Forsyth

Pee Cueiam, When an affidavit of defense is filed and its sufficiency is in question, the court must accept it for verity and regard all the facts properly set forth in it as proved. But where the affidavit is not filed in time, as in the present case, and comes before the court only on a rule to open a judgment regularly entered, the court is entitled to examine the averments critically and to require further evidence as to the facts, as in other cases of application to open judgments. The court below was not satisfied that a prima facie defense was sufficiently made out to justify sending this case to a jury. Plaintiff sued on a promissory note of which defendant' was the maker. The defense was that defendant was a guarantor for the real debtor, one Shearer, and made the note on the [469] faith of representations made by Shearer “ and concurred in by the plaintiff ” that it represented the actual debt of Shearer to plaintiff, but that defendant had “ subsequently ascertained that the said Hunter and said Shearer unlawfully agreed together to add to the said contract or indebtedness of Shearer to said Hunter a certain sum, in fraud of this plaintiff’s rights, which this defendant is informed, believes and avers to be at least ten per centum of the actual bona fide indebtedness of said Shearer to said plaintiff. It is objected to this affidavit that it is vague, inter alia in not stating whether the debt of Shearer was due at the date of the note or was to be incurred thereafter; in not stating either the actual debt or the amount added with any certainty, and especially in not averring any representations by plaintiff except inferentially by the use of the word “ concurred.” For these and perhaps other objections the court did not deem the defense sufficiently made out. It was entitled to satisfactory depositions or further evidence, and we cannot say that there was error in requiring something more than this affidavit. A further defense is based on the want of a revenue stamp on the note as required by the act of congress of June 13, 1898. It was held in Chartiers, etc., Turnpike Co. v. McNamara, 72 Pa. 278, that the act of congress of 1866, prohibiting the admission in evidence “ in any court ” of an unstamped paper, applied to state as well as federal courts. That decision was made by a divided court, and has never commanded the general acquiescence of the profession. The decisions in other courts of high authority are against the power of congress to interfere even indirectly with the rules of evidence in state courts. Whether the same construction would now be given to the act of 1898 may therefore be open to doubt. But the question does not arise in the present case, for the affidavit is not that the note was not duly stamped but that “ it does not appear from the plaintiff’s statement of claim ” that it was so stamped. This is merely an argumentative denial, and amounts at most to a technical objection to the pleadings, which is not the office of an affidavit of defense, and still less of an affidavit to open a judgment. Judgment affirmed.