Gittings v. Loper

DALLAS, Circuit Judge. If this affidavit shall be supported by evidence, the burden will be shifted to the plaintiffs to establish that they took the'paper in suit without notice of the fraud alleged, before maturity, and for value. Investment Co. v. Russel, 148 Pa. St. 496, 24 Atl. 59; Simons v. Fisher, 17 U. S. App. 1, 5 C. C. A. 311, and 55 Fed. 905. This burden cannot be evaded by the averment that the plaintiffs purchased the drafts “prior to the date of the payment thereof, and for a valuable consideration,- without notice.” It is not a legitimate function of a statement of claim to reply to an anticipated affirmative defense, and it is not incumbent upon a defendant to rejoin to any such irregular and premature replication. If this were not so, a plaintiff might defeat such a defense as is interposed here, by merely alleging the existence of the facts necessary .to avoid it, and so escape from the requirement that,he shall overcome it, if proved, by exculpatory evidence. If the plaintiffs are bona fide holders, they can readily show it; but the defendant may not have knowledge, or be informed, upon the subject, and to require him to make affidavit respecting it would be neither reasonable nor fair. The rule for judgment is discharged.