Davis v. Cleghorn

Walker, J. This was an action of assumpsit, instituted on a promissory note. The declaration contained a special count only, to which the defendant filed a plea, by which the assignment of the note was denied, and to which this affidavit was annexed: “ G. Edmunds, Jr., attorney for the defendant, being duly sworn, says that the signature ‘ I. Davis’ to the indorsement on the back of said note sued on in this cause, is not in the handwriting of said I. Davis.” On the trial of the cause, the plaintiff read in evidence, the note and' indorsement, to which the defendant excepted. This then presents the question, whether this plea verified by the affidavit, was sufficient under the practice act, to put the plaintiff upon the proof of the assignment. The 59th section of that act has dispensed with proof of the assignment, of the signature of any assignor, unless the fact of assignment be put in issue by plea, verified by affidavit of the defendant or some credible person, stating that he verily believes the facts stated in the plea to be true. This plea in terms denies that the note sued upon, was indorsed by the payee of the note, and if. the affidavit verified that fact, there can be no doubt of its sufficiency to have put the plaintiff upon proof of the assignment. But it fails to do so, and only alleges that the signature to the assignment is not in the handwriting of the payee# This may all be strictly true, and yet the assignment be valid. We all know that a man may bind himself to an agreement to which his name is affixed, either by procuration or adoption, as well as by his own hand. This affidavit is not as broad as the plea, as it neither verifies the truth of the plea, nor avers that the assignment is not that of the payee. If he procured another person to sign his name, or if already signed he adopted it as his own, the indorsement would be binding, and yet this may all have been true, and is not denied by the affidavit. There was therefore no error in admitting the note and assignment in evidence, and the judgment of the court below must be affirmed. Judgment affirmed.