Moore v. Somerset

6 Watts & Serg. 262

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1843
• Status: Published

Opinion

Per Curiam.

This affidavit contains an assertion of every fact necessary to constitute a defence, but one. The note in suit fell due on a Friday, and notice of non-payment was not received, certainly, till the Monday following; which would be too late, if the parties lived in the same towm. But the defendant has not sworn to the residence of the drawer; and as demand of payment was to be made there, it may have been a place so remote, that notice could not be sent from it to the endorser so as to reach him in less than the time sworn to, by the regular operations of the mail. But the defendant may have been unable to swear to the place of his residence. Very well. He is bound affirmatively to make out a case of negligence, and must swear to facts enough to constitute it. If he cannot do that, he cannot swear to a defence. In this case every fact sworn to may be true, and yet the plaintiff be entitled to recover. It is said that, as the note is dated at Philadelphia, the presumption is that the.drawer resided there also. But a defendant is bound to swear to facts, not presumptions. This endorser was bound to know the residence of the drawer; and ought to have stated, at least, his belief that he would be able to prove it to the satisfaction of a jury; without which his defence would be incomplete.

Judgment affirmed.