however, any intention to deceive), and its statement, through its cashier, that the notes to be paid by the loan were in the package, had a direct and natural tendency to cause her to believe that the fact was different from what it actually was. Against her so-called duty to plaintiff to examine the notes we offset her right to rely on the performance by plaintiff of its duty to follow her husband’s instructions touching the payment of this note, and the declaration of its cashier clearly importing that this duty had been faithfully discharged. The voice that allays suspicion may not be heard to condemn or criticize because the confidence and security it inspired have produced their natural result.
It is further urged that the answer of defendant Roberts is insufficient because it avers payment upon information and belief; and it is therefore insisted that the trial court should have given judgment against defendant Robertson the pleadings, there being no other defense set up and all the material averments of the complaint being admitted. In this connection plaintiff cites cases which hold that a denial of any information sufficient to form a belief of alleged facts, of the existence or non-existence of which it is possible for the defendant to make himself personally acquainted—as whether a certain record exists— is not a good denial. These decisions are, doubtless, sound. It being in the power of the defendant to deny positively and of his own knowledge the fact alleged in the complaint, in case it does not exist, his failure to make such positive denial is very properly taken as an admission of its existence. The courts will not suffer a litigant to close his eyes, and, hiding behind the forms of the law, delay the administration of justice. Such a denial, under such circumstances, is a palpable fraud. But the defense of payment is not necessarily within the knowledge of the debtor. In this day, when a vast volume of business is conducted by agents, payments are often made by agents without the personal knowledge of the principal. To allege such a payment in positive form would be reprehensible. The principal would be guilty of perjury. He would state that he had personal knowledge of that of which he knew he did not have personal knowledge. He must aver payment, under such cir-
