Mason v. Noonan

By the Court, Cole, J. In order to attack the doctrine laid down by this court in the case of Davis vs. Pawlette, 3 Wis., [618] R 300, the counsel for the appellants takes for granted a position ■which he is not authorized to assume, which is, that the note sued upon was transferred to the respondents by the payees after it became due. The general rule is that an indorsement, in the absence of any evidence to the contrary, is always presumed to have been made at or about the date of the note. And in a suit by an indorsee against the maker, the production of the note has been holden to be prima facie evidence to sustain the general allegation of an indorsement at or near the time of making the note. Hendricks vs. Judah, 1, John. R. 319 ; Burnham vs. Wood, 8 N. H., 334; Wrebster vs. Lee, 5 Mass. 334; Banger vs. Cary, 1 Met. 369; Burnham vs. Wrebster, 19 Maine 232. The ground of defence relied upon in the answer, is the pendency of the attachment suit of Whyte & Hurlbert vs. Miller & Holbrook, in which the appellant had been summoned to answer as garnishees. But how could this defence be efficacious and valid if the note had been indorsed before it became due ? The boldness of the counsel which lead him to assail with so much vigor the soundness of the doctrine in the case of Davis vs. Pawlette did not carry him so far as to contend that the makers of a promissory note negotiable and transferred before maturity could successfully resist an action by the indorsee upon the ground that they had been summoned as garnishees of the payees. It is nowhere averred in the plea or defence in abatement, that the note was transferred by the payees to the respondents after it became due; and for the purposes of this case adopting as sound the rules which the counsel for the appellants lays down for the construction of pleadings, that it is to be presumed that the answer sets forth in the most favorable manner the defence, and how can this matter set up in abatement prevail ? In order to render it complete and effectual — even if the case of Davis vs. Pawlette is not authority, which we do not find it necessary in this case either to affirm or deny — still [619] the appellants should show in their answer that the note was liable to be garnisheed, it having been indorsed after it became due. This they have failed to do, leaving the legal presumption unrepelled that the note was negotiated before it was dishonored, and when it was not liable to be garnisheed. The order of the court below sustaining the demurrer was therefore correct, and the judgment of that court must be affirmed.