Lincoln v. Stevens

48 Mass. 529

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1844
• Status: Published

Opinion

Dewey, J.

I do not know that the counsel for the defendant would contend against the ruling, any further than that, in the present case, upon its peculiar circumstances, the burden was not on the defendant to establish the facts relied on in his defence. Those circumstances are, that one of the makers of the note had the same in his own possession at the time of the transfer to the plaintiff, although then indorsed by the defendant, the payee of the same; and that this fact of the possession of the note by one of the makers, after the same was indorsed, must necessarily have apprised the plaintiff, when he took it, that he was taking an accommodation note. Assuming this to be so, we do not perceive that it would affect the rights of the party holding the note as indorsee, in the matter of burden of proof as to the facts set up in avoidance of the note. Because it was an accommodation note, it was not therefore prima facie a note fraudulently put in circulation ; nor does that fact indicate that the maker is acting mala fide in transferring it. This, to a great extent, is the usual course of business, where the maker would raise money upon his own note secured by an indorser. This fact, therefore, indicates nothing unusual, nor was it calculated to excite the attention of the indorsee; nor can it affect his legal rights.

Judgment on the verdict