Hassamali Issa & Co. v. Jeraj Produce Store, Civ. App. 20-D-66; -/2/67; Hamlyn, J.

Hassamali Issa & Co. v. Jeraj Produce Store, Civ. App. 20-D-66; -/2/67; Hamlyn, J.

Appellant brought an action on a cheque. Leave was given to defend upon an affidavit alleging that the cheque was given by defendant under duress. Appellant argued that duress had to be proven before appellant would be obliged to prove consideration for the underlying contract.

            Held: (1) An action upon a negotiable instrument succeeds unless, fraud, mistake or “something similar” is averred. (2) Where such averral is made, “acceptance of the affidavit makes it incumbent on the holder to prove consideration.” The affidavit destroys the plaintiff’s “position of being entitled to a decree on the ground that the defendant is deemed to admit the allegation in the plaint, “and “the case becomes a simple suit for recovery of money.”