44 Mass. 305 | Mass. | 1841
The court are of opinion, that the plaintiff is entitled to recover. The order drawn by Litchfield in favor of the plaintiff, and accepted by the defendant, has most of the characteristics of a bill of exchange ; but being drawn on a particular fund, and accepted conditionally, it is not, strictly speaking, a negotiable bill of exchange. But it has been held — probably in analogy to the case of a bill of exchange — that prima facie such an order is evidence of a consideration, without the words “ value received,” or other express evidence of consideration, so as to constitute it a good assignment. Adams v. Robinson, 1 Pick. 461. But being prima facie only, it is always competent to rebut the presumption of consideration by proof; in which case, such order should be construed to be an authority only, without interest in the payee, and so not an assignment. If the assignee of Litchfield could show that the order was given without consideration, or was otherwise fraudulent against creditors, it would appear that no interest in the fund passed to the plaintiff by the order and acceptance, and the assignee would be entitled to the balance in the hands of the defendant, for the benefit of the creditors of Litchfield. But that is a fact to be agreed or found by a jury.
It appears that long before the insolvency, the vessel in question had been conveyed, in due form, from Litchfield to Cabot, and the property in the vessel was thereby vested in the latter. • The interest of Litchfield was only in the fund to arise from the
Defendant defaulted.
