Bakewell v. King , 5 Day 489 ( 1813 )

Trumbull, J.

The merits of this case, depend, wholly, on the sufficiency of the plea. The plea should have averred the assent of the creditors to the deed of assignment; for, without such assent, the deed and release were both void, by their own provisions. The want of this averment, is a fatal omission.

If, instead of demurring to the plea, the plaintiffs below had replied, by denying, that all the creditors had given their assent to the assignment, and signed discharges, and that the assignment and discharge pleaded were, therefore, void, the defendants must have taken the affirmative sido of flic question, and rejoined, that all the creditors had assented and executed discharges. The onus probandi always falls on him, who takes the affirmative in the pleadings.

This tests the question. He, who is bound to prove a. necessary fact in the case, must, in special pleadings, aver it; and his omission, in such case, will be fatal, on demurrer.

The principal dispute at the bar, as to conditions precedent and subsequent, arose on a mere inaccuracy of expression in the discharge pleaded. The assent and discharge of the other creditors, depended upon facts, necessarily subsequent, in point of time, to the discharge of the plaintiffs, relied upon in the plea ; but they were a condition precedent to the validity of that discharge.

For these reasons, I am of opinion, that in the judgment complained of, there is nothing erroneous.

In this opinion all the other Judges concurred, except Ingcrsoll, J., who did not judgé.

Judgment affirmed.