Frazer v. Brownrigg

GOLDTHWAITE, J. It is the settled rule in this court, that the legal effect of such a plea as is here in question, is only to controvert the fact of indorsement, and, if well pleaded, to put the plaintiff on proof of its genuineness. [Beal v. Snedicor, 8 Porter, 528; Jennings v. Cummings, 9 Ib. 309; Tarver v. Nance, 5 Ala. Rep. 712.] It is a mistake to confound this matter with the ordinary case of proving an interest in the payee, or even a third person, notwithstanding the in-dorsement. Such it was held, could be done, in Tipton v. Nance, 4 Porter, 194, and what is said in Evans v. Gordon, 8 Porter, 142, has reference to the same principle. So too in Bowen v. Snell, 9 Ala. Rep. 481, a plea alledging the interest of the note to be in a third person, against whom the defendant asserted a set off, was allowed. In Moore v. Penn, 5 Ala. Rep. 135, it was held inadmissible to show that one for whose use a suit is brought, had no interest in the note, unless it became necessary to prove some defence as against the true owner. Whether these decisions overrule that made in Byant v. Owen, 2 S. & P. 134, we will not at this time undertake to pronounce, but certainly they show that every de-fence may be asserted against the actual owner, independent of the mere name in which the suit is commenced. With this explanation of what has hitherto been decided, the pro 819 priety of holding* the plea, in this case, as a mere denial of the assignment, will be entirely apparent. All the decisions first referred to, show the plea is defective without an affidavit of its truth, but none determine the form or substance of the affidavit. Indeed the requisites of the affidavit are ascertained very precisely by the act itself, which declares the defendant shall annex to the plea an affidavit, stating that he verily believes that some one or more of the assignments were forged, or make oath to the same in open court, at the time of filing the plea. [Dig. 341, § 158.] It is evident this plea is not verified in the terms which the act demands, and is therefore bad. Judgment affirmed.