Sherwood v. Mitchell
New York Supreme Court
Error to the Yates common pleas, where the cause was tried on appeal from a justice’s court—Mitchell being the plaintiff and Sherwood defendant.
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Error to the Yates common pleas, where the cause was tried on appeal from a justice’s court—Mitchell being the plaintiff and Sherwood defendant. The plaintiff claimed to recover the amount of two promissory notes for the payment of thirty dollars each, both dated January 7th, 1843. The defence was a discharge of the defendant from his debts under the late bankrupt act, granted February 7th, 1846, pursuant to a petition to be declared a bankrupt presented on the 8th day of February, 1843; which discharge the defendant pleaded in a formal manner, with an averment that the plaintiff’s debt was…
1Opinion of the Court
By the Court, Jewett, J.
The ground taken by the plaintiff is, that as the defendant in his plea had alleged that the plaintiff’s debt was proveable under the bankrupt, act, and that it was not created in consequence of the defalcation of the defendant as a public officer, or while he was acting in a fiduciary capacity, he was bound, according to a general principle in the law of evidence—that he who asserts the affirmative must prove it—to prove these facts so alleged by evidence aliunde the discharge and certificate. The general rule as contended for, is undoubtedly correct; but there is an…
2Cases cited2 opinions
- Potter v. DeyoNew York Supreme Court · 1838
- Sheldon v. ClarkNew York Supreme Court · 1806
3Cited by10 opinions
- Williams v. PeopleAppellate Court of Illinois · 1886
- City of Chicago v. WoodAppellate Court of Illinois · 1887
- VanNorman v. YoungIllinois Supreme Court · 1907
- Laffoon v. Kerner.Supreme Court of North Carolina · 1905
- Martinez v. CoganAppellate Court of Illinois · 1943
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