Ogden v. Cowley

Kent, Ch. J. delivered the opinion of the court.' 1. On the first point we are of opinion, that the demand and notice were sufficient. This case comes within the reason of the decision in Stewart v. Eden. (2 Caines, 127.) All proper steps were taken to make a demand on the maker of the note, and to communicate the re^-quisite notice to the indorser. 2.' The second point is within the case of Dickson v. Evans. (6 Term, 57.) The decision of the K. B. in that case is founded in good sense and sound policy, and I am disposed to adopt it. It would, as Lord Kenyon observes, be unjust if one person, who happened to be indebted to "another at the time of his bankruptcy, was permitted, by any intrigue between himself and a third person, so to change his own situation, as to diminish or total^ destroy the debt due to the-bankrupt, by an act ex post facto. Such an act would be a fraud on the equality of the bankrupt act. The only question is, on whom does the onus probandi lie, of proving when the defendant cpie to. the possession of the checks ? It was held truly to lie on the party who wishes to make out his demand or defence, by a particular fact-, and of which he is supposed to be conusant. This rule applies with peculiar force to the present case, because one of the checks .bore date subsequent to the bankruptcy of Olcott, and both were payable to bearer. We are accordingly of opinion that the defendant did hot entitle himself to set off the checks, and that the motion for a new trial must be denied. Rule refused. Footnotes [‡] Lucas v.’ Marsh, Barnes 453.