Nicolet's v. Gloyd ( 1841 )

Martin, J.

delivered the opinion of the court.

This is an action against the drawers of a bill of exchange protested for non-payment. The defendants pleaded the general issue; there was judgment against them in solido, and they appealed. McDonnell, one of the defendants, having failed and made a cession of Ms property since the rendition of the judgment in the court below, the syndic has appeared and made himself a party in this court.

The plea does not deny the signature of the defendants. Those of the indorsers and the protest, were duly proved; hut regular notice does not appear to have been given to the defendants. It is however shown the defendants admitted that the draft was an accommodation one, and that one of the defendants, with the knowledge of the irregularity of notice, offered to give indorsed notes at long dates, which were refused.

The judge a quo has, in our opinion,-correctly concluded that the foregoing testimony threw upon the defendants the onus probandi of their having had funds in the hands of the drawees, and that they suffered in any degree for want ,of notice of protest.

It is therefore ordered, adjudged arid decreed, that the judgment of the commercial court be affirmed, with costs; and it is further ordered that the portion of the insolvent, John McDonnell, he paid-by the syndic, B. Brenan, who is made a party in this court, out of the estate, in due course of [419] ■ administration.