Owosso Sav. Bank v. Walsh

65 F. 783, 1895 U.S. App. LEXIS 3030

Opinion

DALLAS, Circuit Judge.

Rule 1 of this court provides that the genuineness of indorsements of promissory notes shall he taken to he admitted unless denied by affidavit. The affidavit of defense in this case concedes that the defendant’s indorsement of the notes sued upon “may have been” obtained by fraud, and without his knowledge, -but avers that he has no recollection whatsoever' of having indorsed them, “and therefore denies that the alleged signature on said notes is his signature, and demands that proof thereof be required upon the trial of the cause.” Although this denial is so peculiarly guarded as, perhaps, to justify some hesitancy in relying upon it, yet it must, for the present purpose, be accepted as made in good faith, and, being so accepted, it is, I think, sufficient to entitle the defendant to insist upon the proof which he demands. The rule of court was not intended to fix upon a party the admission of a fact which he does not remember, and therefore asks shall be proved, even though he acknowledges its existence to be possible. The other matters set up in defense need not be now considered. Judgment for want of sufficient affidavit of defense denied.