
    Ogden, Wilkins and Knox, assignees of Olcott, a bankrupt, against Cowley, survivor of Cowley.
    inaction brought by the assignees of a bankrupt, on a note due rupt’s estate, eannotTeUdf a check issu-ruptj payable to bearer, bearing date before the ^nl£r“plcy’ provesfurther check came to his hands prior to the bankruptcy,
    . , . , , , . I His was an action of assumpsit, brought by tne platn-tiffs, assi<mees"of Olcott, a bankrupt, under the late bankrupt law of the United States, against the defendant as indorser, with his deceased partner, of a promissory note, made by one Brower, for 1,987 dollars and 25 cents, date<i the 11th July, 1799, payable three months after date. The defendant pleaded non assumpsit and payment; and 1 J r J gave notice of a set-off, for money lent and advanced to Olcott, and money had and received by him before he became a bankrupt; and a check dated the 13th day of October, 1800, drawn by Olcott, on the cashier of the bank of New-York, for 2,000 dollars, payable at sight to ' , , bearer; and another check, dated the 22d September, 1800, drawn by Olcott, on the bank of New-York, for $,000 dollars, payable to bearer on the 22d October, then next, held by Brower, and for which sum hirWas indebted to Brower before he became a bankrupt.
    The cause was tried before Mr. Justice Livingston, at the New York sittings, the 27th December. 1800.
    At the trial the plaintiff proved the making of the note, and the indorsement, and that payment was demanded on the 14th October, 1799, by a notary, who went to the house of Brotoer for that purpose, but found it shut up and’ no person there, and was informed on inquiry, that Brotoer was not in town. On the 15th October,, the notary called at the house of the defendant and his deceased partner, for the".purpose of giving them notice of the nonpayment of the note, &c. but found their house locked up, and on inquiring at the next door, was told that thejr were gone out of town. On the same day, the notary put a letter into the post-office, in the city of Netv-York, addressed to the defendant and his partner, informing them of the non-payment of the note, and that the holder looked to them for payment. It appeared that the yellow fever prevailed in the city of New-York at that time.
    
      Olcott became a bankrupt on the 6th October, 1800, and the plaintiffs were duly appointed his assignees. The defendant then proved both checks to have been issued by Olcott, and offered to prove that the check dated the 13th October, was in fact given antecedent to the act of bankruptcy by Olcott, and was dated forward ; that checks are frequently so dated when the drawer has not funds in the bank at the time. The counsel for the plaintiffs objected to this evidence as insufficient, unless it was shown further that the checks were held by the defendant and Brower at or before the 8th October, 1800; but the defendant offered no evidence of that fact. Brow-r er, the drawer of the note,- became a bankrupt in 1801, and the check dated the 22d September, 1800, was found-by his assignees among his papers.,
    
      On this evidence the judge was of opinion that the defendant had not supported his plea, and that the plaintiffs were entitled to recover, and so directed the jury, who found á verdict for the plaintiffs for the amount of the note.
    A motion was made to set aside the verdict. 1. Because the proof of the demand of payment and notice wás insufficient to. charge the indorsers. 2. Because, if the defendants were liable on the note, they were entitled to get off the checks. 3. That the judge ought to have admitted the evidence to show that one of the checks, dated after the bankruptcy of Olcott, was in fact issued before*
    
      ■Radcliff.
    
    1. It was the duty of Olcott, or his agent, when he found that the defendant was .not at his bouse, to have made inquiry after him, so as to ascertain the place of his actual residence. Thé defendant may have had a house in the country, where a notice might have been left. In the case of Stewart v. Eden,
      
      , the notice was rolled up and put in the key-hole of the door of the in-dorser’s dwelling house. At least the plaintiff ought to have shown that the letter put into the post-office came to the hands of the defendant.
    The court have considered checks as ¡¡rima facie evidence of value received, at the time they bear.date, or are issued; and, unless the. contrary be proved, they must be presumed to be issued bona fide, for the amount, and to be delivered at the time they bear date. If so, the check dated the 22d September, must-be considered as in the possession of -Brower prior to the bankruptcy of Olcott; and it was incumbent on the plaintiff to prove the contrary. It would be a great hardship to oblige the Iona fide holder of a check which passes as cash, to prove the time it came into his possession.
    3. Evidence that the other check, though dated the 13th October, was in fact issued prior to the bankruptcy of Olcott, ought to have been received, and when taken in connexion with the other circumstances, was sufficient evidence to be left to- the jury; but the judge rejected this evidence, and charged the jury decidedly in favour of the plaintiffs.
    
      Johnson, contra.
    1. Whether due notice has been • given of a note or bill, must depend on the circumstances of the case. It is a question of due diligence, and the court will be satisfied, if the holder has taken reasonable care to send the notice. This case is clearly within the principle of the decision in StewarJ v. Eden. The putting the notice into the post-office, addressed to the indorsers, and which there was a moral certainty they would receive, shows a greater diligence than to put a paper into the key-hole of the door of an unoccupied house. Where a party is out of town, the post-office is the ordh nary and fit mode of conveyance.
    2. In the case of DicJcson and others v. Evans,
      
       which is perfectly analogous to the present case, the question now before the court, as to the set-off, was expressly decided. Lord Kenyon, observed, that the cases of set-off were to be considered in the nature of cross actions; that if the defendant had brought his action on the indorsed note or check, it would have been necessary for him to prove the "time the note was indorsed, or came to his hands.t The court of king’s bench were all of opinion, „ , , . „ . . • as well from the reason of the thing, as from the language of the bankrupt act, and the authority of adjudged cases, that a set-off of a check or note could not be allowed, unless the party who wished -to avail himself of such a fact in his defence, proved that it came into his possession previous to the bankruptcy. rI he proof, as to the time, • must therefore rest on the defendant, and not on the assignees of the bankrupt.
    But the check held by the defendant was, in fact, dated subsequent to the bankruptcy of Olcott, and the legal presumption is, that it was issued on the day it bears date.
    The other check held by Brower cannot be set off by the defendant, in an action- brought against him by the indorsee of Brower’s note: yet, if it could be set off, there is no proof that it came into the possession of Brower prior to the bankruptcy. •
    
      
      
        2Caines, 121.'
    
    
      
       He cited Cruger v. Armstrong Sf Barnwell, decided in Jan. term, 8802.
    
    
      
       6 Term, 6$.
    
   Kent, Ch. J.

delivered the opinion of the court.'

1. On the first point we are of opinion, that the demand and notice were sufficient. This case comes within the reason of the decision in Stewart v. Eden. (2 Caines, 127.) All proper steps were taken to make a demand on the maker of the note, and to communicate the re^-quisite notice to the indorser.

2.' The second point is within the case of Dickson v. Evans. (6 Term, 57.) The decision of the K. B. in that case is founded in good sense and sound policy, and I am disposed to adopt it. It would, as Lord Kenyon observes, be unjust if one person, who happened to be indebted to "another at the time of his bankruptcy, was permitted, by any intrigue between himself and a third person, so to change his own situation, as to diminish or total^ destroy the debt due to the-bankrupt, by an act ex post facto. Such an act would be a fraud on the equality of the bankrupt act. The only question is, on whom does the onus probandi lie, of proving when the defendant cpie to. the possession of the checks ? It was held truly to lie on the party who wishes to make out his demand or defence, by a particular fact-, and of which he is supposed to be conusant. This rule applies with peculiar force to the present case, because one of the checks .bore date subsequent to the bankruptcy of Olcott, and both were payable to bearer. We are accordingly of opinion that the defendant did hot entitle himself to set off the checks, and that the motion for a new trial must be denied.

Rule refused. 
      
      
        Lucas v.’ Marsh, Barnes 453.
     