
    * [Philadelphia, February 17, 1838.]
    STITT and Another against GARRETT.
    in error.
    In an action by the endorsee of a bill against the acceptor, the defendant filed an' affidavit of defence, setting forth that the bill was made and accepted with the expectation of its being discounted at a Certain bank, for the benefit of the acceptor, and for that purpose was handed to the drawer, who was unable to get it discounted ; and that the deponent had learned that the drawer gave the bill to the plaintiff as collateral security for a smaller sum, borrowed by him from the drawer, and “ that the plaintiff did not receive the bill in the ordinary and usual course of business, but received it under circumstances of suspicion, and such as ought to have put him on inquiryHeld, that this affidavit was not sufficient to prevent a judgment under the act of the 28th of March, 1835, relating to the District Court for the City and County of Philadelphia.
    Error to the District Court for the City and County of Philadelphia.
    John Garrett, brought an action on the case, against John W. Stitt, and George Wall, trading under the firm of John W. Stitt & Co., and filed a declaration in assumpsit upon a bill .of exchange, dated the 2d of January 1837, drawn by E. E. Haskell upon J. W. Stitt & Co., and accepted by them,.for $750, in favour of E. E. Haskell, and endorsed by him to the plaintiff.
    The plaintiff filed a copy of this instrument of writing, in conformity with the provisions of the act of 28th March, 1835.
    The defendant filed the following affidavit of defence.
    “John W. Stitt, one of the above defendants, being duly affirmed, says, there is a defence to the above action, to wit: The draft on which suit is brought, and a copy of which has been filed, was made by the defendants and accepted by them, and handed to E. E. Haskell to get discounted, in the Delaware Co. Bank, Chester, and hand over the proceeds to them, the said defendants; and in case he should not get it discounted, the said Haskell was to return the draft to the Said defendants. The said Haskell had no interest in the draft except as the agent of the defendants, to get it discounted at bank. The said Haskell was unable to get it discounted; and *affirmant fully believed that it had been returned to the defendants and destroyed.
    He has since learnt that said Haskell gave the draft to the plaintiff, as collateral security for the sum of $300, borrowed by Haskell from him, for his own use, and not for the defendants’. That the said pawn of the draft was without the knowledge and consent of the defendants; and in violation of the trust reposed in the said Haskell. That the said plaintiff did not receive the said draft in the ordinary and usual course of business, but received it under circumstances of suspicion, and such as ought to have put him on inquiry. Affirmant is instructed, that such being the case, the defendants have the same defence against the plaintiff, as'they would have against the said Haskell, the drawer and endorser of the said draft, had it remained in his possession.
    And affirmant positively affirms, that the said defendants are not indebted one cent to the said Haskell, but on the contrary, he, the said Haskell is indebted to them in a large sum of money. At the time he received the said draft, the said plaintiff gave the said Haskell the following receipt.
    Ashton, 19th January, 1837.
    
      1 Received of E. F. Haskell, a draft on J. W. Stitt & Co., and accepted by them for seven hundred and fifty dollars, elated Jan’y 2d, 1838; payable four months after date.
    [Signed] John Garrett.’
    And at the same time took from the said E. F. Haskell, his receipt for the $300 loaned him.”
    The plaintiff obtained a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, which rule was made absolute on the 5th of September, 1837; and judgment was entered for the plaintiff for the sum of $300, with interest from the 19th of January, 1837.
    The defendant took a writ of error; and assigned the following points.
    “ 1. The Court erred in deciding that the affidavit of defence filed in the above case, was not sufficient to entitle the defendant to a trial by jury.
    2. The Court erred in giving judgment for plaintiff for $300, notwithstanding the affidavit of defence.”
    
      Mr. Perkins for the plaintiff in error,
    contended, that the District Court ought, upon the affidavit filed, to have given the defendant an opportunity to go to a jury; and that there was sufficient ground laid to call upon the defendant to prove the consideration given by him. He cited Morton v. Rogers, (14 Wendell, 581); Brown v. * Taber, (5 Wendell, 566); Beltzhoover v. Blackstock, (3 Watts,
    Mr. Gr. L. Ashmead, contra.
    
    It is no where stated in the affidavit that the plaintiff had any notice of the transactions between the drawer and acceptor; and without some evidence of this kind, it is certain that the defendant had no case. Harrisburg Bank v. Meyer, (6 Serg. & Rawle, 537); Lewis v. Reader, (9 Serg. & Rawle, 193). It is well settled that where a loss has been sustained by two innocent persons, it must be borne by the party whose conduct occasioned it. Merchants Bank v. Bank United States, (4 Rawle, 318); Thurston v. M'Kown, (6 Mass. Rep. 429); Perry v. Crammond, (1 Wash. C. C. R. 105). Here the plaintiff asked only for judgment for the amount of his loan, with interest.
   Per Curiam.

One of the defendants swears to what would certainly be a defence against the original holder; but it is necessary to put the endorsee in the same predicament, and to that end it is sworn that the plaintiff received the bill, not in the usual course, but under circumstances of suspicion which ought to-have put him on inquiry. But the conclusion thus indicated is matter to be verified, not by the oath of the party, but by the judgment of the Court: it is in fine a conclusion of law. The only pure matter of fact sworn to, is, that the plaintiff took the draft under circumstances which do not ordinarily'attend the negotiation of commercial paper; but all-such circumstances may not equally affect a party with notice; and, without having them exhibited, how can the Court say whether they are circumstances of suspicion at all ? They ought to have been set out; for it is not enough to swear to a general allegation of defence, without submitting the particulars, in order that the Court may determine whether it be in truth what it is called; and for this defect, the affidavit is palpably insufficient.

Judgment affirmed.

Cited, by Counsel, 6 Wharton, 471; 6 Watts & Sergeant, 222 ; 2 Barr, 348 ; 1 Wright, 235.

Cited by the Court, 4 Casey, 296.

As to when an endorsee must show that he is a bona fide holder, see 2 Wharton, 265 ; 4 Watts & Sergeant, 447 ; 7 Barr, 477; 5 Casey, 367.  