Mechanics' Banking Ass'n v. Spring Valley Shot & Lead Co. , 25 Barb. 419 ( 1857 )

By the Court, Mitchell, P. J.

Is it not implied that the note was indorsed by the defendant, The Spring Valley Shot and Lead Company, in the course of its lawful business, until the contrary is proved? In McCullough v. Moss, (5 Denio, 567,) the decision was based on the Rossie Lead Mining Company having made a purchase partly for objects beyond the scope of their incorporation, as for a school house, &c. The objection by Senator Lott was not that the company must primarily show that the note was given by it for lawful purposes; but that the president and secretary were not the proper officers to sign a note, unless express authority to them was proved, from the records of the company. Here, the complaint alleges that the note was indorsed by the defendants. That implies that it was lawfully indorsed by them, and the burthen is thrown on the defendants to show that it was not lawfully done. The rule that the complaint must state all issuable facts, does not apply. The issuable facts are alleged in the general language used; and there is no obligation on the plaintiff to negative what the defendant must prove. When a company has power to do an act, and does it, it is presumed that it was done lawfully, until the contrary be proved.

[New York General Term, September 14, 1857.

The judgment should be reversed, with costs.

Mitchell, Roosevelt and Peabody, Justices.]