Reed v. Mitchell ( 1852 )

The opinion of the Court was delivered, by

Lewis, J.

The notice of assignment to Burroughs was given on the 16 th December, 1847, and the tender, in depreciated notes of the Lewistown Bank, was made two days afterwards. This was too late. If the notes had been received by the defendant below, in the usual course of business, before notice of the assignment, a different question might arise. But the burden of proof is on the party making the tender. He must establish the facts necessary to make it effectual. There is no presumption of law arising from the tender, that he had them in his possession at an earlier period than the day on which he offered them in payment of the plaintiff’s demand.

There was no other note in possession of the bank, of which Thomas Reed was the maker. The notice, in designating him as the maker, and in stating accurately the date, the amount, and the time of payment, could therefore apply to no other than the note in controversy, and was sufficient.

The misdescription in the assignment is not material, inasmuch as the special verdict finds the fact that the note was transferred to Mr. Burroughs before the tender, and it is not found that the assignor makes any objection upon that ground, or sets up any claim to the note.

The remaining points of the case are ruled in Philips v. The Lewistown Bank.

Judgment affirmed.