5 Ala. 347 | Ala. | 1843
1. The act of 1837, [Meek’s Sup. 365, § 4,] which authorises the depositions of witnesses to be taken when they reside more than one hundred miles distant from the place wher.e the court is held in which the cause is pending, must be considered as computing the distance by the usual and ordinary land route. We understand the contest in the court below was, whether the distance was to be computed by the river, that being the most usual, or by the land route, sometimes, but not usually travelled. The object of the statute was to relieve witnesses from the inconvenience of travelling more than one hun
2. As to the oiher question, the rule was correctly held by the' court. It is obvious that it would always be difficult to trace' direct notice to a holder of a note, of the fact of the want of consideration, or its failure. When therefore, a state' of facts is proved, from which a failure of consideration is to be inferred,it rests with the holder to avoid the consequences of such proof, by showing that the note came to his hands for value paid for it before it was due. [Chitty on Bills, 8 ed. 79.] The rule formerly prevailed in England, in one of its courts, to require that the defendant should give notice of this defence in order to put the plaintiff on his guard, and such seems now to be the rule in New York. [Valett v. Parker, 6 Wend. 615.] We do not consider notice as necessary to let in such a defence; but if it was, the plea in this case was sufficient to put the party on his guard.
Judgment reversed and remanded.