
    Nicolet’s Executor v. Gloyd & Al.
    Where the defendants, sued as drawers of a draft, plead the want of due notice, but admit it was for accommodation, and one of them offered to give indorsed notes in payment: — held, that the onus prdbandi of their having funds in the hands of the drawees, devolved on them,
    Appeal from the commercial court of New Orleans.
    This is an action against Gloyd & McDonnell as the drawers of a bill of exchange in Hew-York on J. & W. Gallaher, of New Orleans, for $3969, which was duly accepted, payable nine months after date, and protested for non-payment.
    
      The defendants admit'the drawing of the hill hut .rely on a want of due notice of protest. They plead a general denial.
    It was proved the bill was an accommodation acceptance as admitted by one of the drawers; who also offered notes in payment at long dates.
    It appeared in evidence that the notary addressed notices of protest [418] to the drawers in Hew-Yorb, where the bill was made, instead of New Orleans, where they resided.
    The judge a quo, however, considered them hound; that if they had not due notice it was incumbent on them to show they bad placed funds in the hands of the drawees. From judgment against them the defendants appealed.
    
      LooTeett and Miaou for plaintiff.
    
      F. B. Conrad contra.
   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.  