The opinion of the Court was delivered by

— The question between the plaintiff and defendant was, whether there was or is a deficiency to pay liabilities without resorting to this note. The court below put it on the ground that the note created a legal liability to pay $2250, from which defendant could only be discharged by an equitable defence. This *44expression came into use while a defendant, to get clear from paying an unjust bond, must go into a court of equity. Our defalcation Act of 1715 put an end to this absurdity, and ought to have put an end to the expression. What by the law of the land is a defence, and may be made in a court of law, is, in this State, a legal defence, and the term “ equitable defence” ought not to be applied to it. It is not longer necessary to go into chancery to have the effect of it — it has led, and will lead to confusion of ideas as long as it is used; neither experience nor law in this State give, for the purposes of doing justice and inquiry into the merits, any more sanctity to a paper with a scroll at the end of obligor, than to one without the scroll.

We had some discussion about two negatives, which, it was said, are in the words “ not a deficiency.” A deficiency or not, is a fact as applied to the subject said to be deficient; and the assertions that there “ is a deficiency,” and that there “ is not a deficiency,” are directly contrary, and no man will or can consider them as the same. But it is not worth w'hile to write a treatise on philology for this case. It is a general rule that the onus prdbandi lies upon the party who seeks to support his case by a particular fact of which he is supposed to be cognizant. 6 T. R. 60. And this will apply more forcibly when the evidence sought’ is in the possession and power of the party who asserts the fact, and who can only recover on proof of it.

To ascertain the fact, for it is a matter of fact, whether the assets of this bank, which closed in 1819, were sufficient at the commencement of this suit, at the end of 19 years (in 1838), would employ the most expert accountant some weeks — it would require more than the books to make out the fact. The dockets and suits brought — the cases in which the debt could not be recovered because of the insolvency of debtors, &c. &c. must all be looked into; and perhaps the cases in which debts were lost by neglecting to protest and give notice to endorsers, and many other matters. The plaintiff in this case alone could prove the deficiency, and must prove it on the issue made by these pleadings, and by reason and common justice, he who has no right until a certain event occurs, must satisfy the jury, by competent testimony, that it has occurred. The exceptions to this rule, if any, are few, and this case is not one of them.

Judgment reversed, and venire de novo awarded.