
    CAKE vs. STIDFOLE.
    Actual notice of protest is sufficient to charge the endorser.
    In an affidavit of defence, an averment of belief in all statements made on information is necessary.
    Error to Common Pleas of Schuylkill County.
    This was an action of assumpsit brought by Stidfole against Henry L. Cake as endorser of a note. Cake, in his affidavit of defence swore that he “received no notice of the non-payment of said note, excepting a certificate of its protest purporting to have been given by C. E. Shindel, a Notary Public, but said certificate was not given by the said notary public, as this deponent is informed, but the protest and certificate was made by a party not legally authorized to do the same. All of which deponent expects to be able to establish on the trial of the cause.” The court below entered judgment against Cake for want of a sufficient affidavit of defence. Cake then took a writ of error assigning as error the entry of the judgment.
    
      
      Lin Bartholomew, Esq., for Cake contended that,
    1. The endorser is entitled to immediate notice if the note is not paid. 1 Parson’s Contracts 277. Story on Bills, 371. 4 Kent’s Commentaries 131.
    2. Protest must be made by the notary personally. Chitty on Bills, 393. Onondaga Bank vs. Bates, 3 Hill 56. Mills vs Bank, 11 Wheaton 431. 1 Am. Lead cases, 474. Hunt vs. Maybee, 3 Selden 266. Cribbs vs. Adams, 13 Gray 597.
    3. Where defendant swears that he expects to prove the facts set forth in his affidavit it is sufficient without an averment of belief. Thompson vs. Clark, 6 Sm. 33. McClure vs. Bringham, 1 T. & H. Prac. 383.
    
      H. B. Graeff, Esq., for Stidfole contended that,
    Actual notice is sufficient. Stephenson vs. Dickson, 12 H. 148. Rahm vs. Phila. Bank, 1 Rawle, 335.
    An averment of belief in facts stated upon information is necessary. Black vs. Halstead, 3 Wright 64.
    The affidavit should be specific and leave nothing to inference. Peck vs. Jones, 20 Sm. 83.
   The Supreme Court affirmed the decision of the lower court on March 9, 1874, in the following opinion :

Per Curiam.

The affidavit of defence does not deny actual notice. Indeed, this is impliedly admitted, the qaulifieation being that the defendant is informed that the protest and certifiate were not actually made by the notary himself. This information is not averred to be believed by him, and might have been given by one who himself had no sufficient information. All that is stated might be true, and yet the defendant might have actual notice of the protest.

Judgment affirmed.  