French & Aven v. Campbell , 25 Ga. 600 ( 1858 )

By the Court.

Benning, J.

delivering the opinion.

The exception urged before us, is to the refusal of the' Court to give the request in charge to the jury. And the question on that refusal is, whether it is not true, “that the mms was on Campbell to show” that the note came into his hands before the service of the garnishment on French & Aven, the makers of the note.

It is certainly true, as his counsel insists, that the law presumes the time of the transfer ofa negotiable note, to have been before the note fell due. Butin this case, the time also of the service of the garnishment, was before the note, fell due. It may well be true, therefore, in this case, that the note was transferred to Campbell before it fell due, and yeü not until after the service of the garnishment on French & Aven. The question, then, is not settled by an appeal to this presumption of law.

His counsel also insists, that “in an action by the endorsee against the maker of a promissory note” (negotiable) “ if the defendant sets up payment he must prove the payment to have been made before the endorsement, or his defence will fail him.”

This likewise may be true, as a general proposition. It is usual for the maker, when he pays his note, to take it up In the case in which he does not take it up, it is fair to presume, that the note was not in the hands of the person to whom he paid it at the time of the payment, but had them been already passed off into third hands.

Bat the present is a different case. It is a case in which, the makers had to pay the note, not to the holder, (payee,) but to a creditor of his; more, it is a case in which, they had to pay it under a process of law, which was operating on them from a time before the note was even payable — the garnishment having been served on them before the note fell due. It conld not be in their power therefore, to take up the note either when they paid it, or previously, when the garnishment began to act on them. That the makers of this note have not taken it up, therefore, does not authorize any presumption, that the note had been negotiated before the service of the garnishmeut.

On the score of equity, garnishees are entitled to rank with the most favored. On that score then Campbell the transfetee ot the note, has no ground to ask for any discriminating presumption in his favor, against French & Aven, the makers.

It is easier for him to show when he obtained the note, than it is for them to do so.

And then, on the plaintiff is the general onus of making out his case. See Harvey vs. Mason & Dibble, 20 Ga. R. 477.

On the whole, we think it true, according to the request, that the onus was on Campbell of showing that the note came into his hands before the service of the garnishmentou French & Aven, and, consequently, we think, that the Court erred in refusing to give the request in charge to the jury.

Judgment reversed and a new trial ordered.