No. 52 | Ga. | Jan 15, 1857
By the Court.
delivering the opinion.
The legal effect of Matthew Wright’s endorsements was, that he was not to be liable to pay anything on the endorsements until the holder of the notes had shown by a suit on them, against their maker, that he did not have sufficient property to pay them.
Did the holder show this, by showing a fi. fa. against the maker, issued from a suit on the notes, with the return of “no property,” entered on thefi.fa. ?
We think that he did, prima facie.
Such a return on fi. fas. against executors or administrators, has ever been held, prima facie, sufficient to show this in suits against them, in their private capacity, for waste. And also in cases against others, not primarily Hiable. Lane vs. Harris 16. Ga. 217.
If, however, in any case the fact be, that the defendant in the fi. fa. has property, notwithstanding such a return, the return is not conclusive on the endorser. He may show that there is this other property; and if he does it, he will get all the benefit of the condition in his endorsement.
The counsel for the plaintiff in error contends, that the holder ought to be required to show not only a fi. fa. with the return of no property entered on it, but also a ca. sa. and •a discharge under the insolvent laws.
- It is to be remembered, that in cases like the present the holder of the note has upon him the burden of proving a negative.' And a negative, from its nature, admits, in general, of no more than proximate proof.
We think then that the return was, prima facie, sufficient to show, that the maker of the note had been sued to insolvency in the sense of the endorsement.
If it was, then Boynton’s evidence was admissible, for that was but evidence of the same kind as the return; and there -was nothing wrong in the charge of the Court.
And therefore,Ave think that all the exceptions ought tobeoverruled.
Judgment affirmed.