Reynolds v. Skelton

2 Tex. 516 | Tex. | 1847

Mr. Justice Lipsoomb,

after stating the facts, delivered the opinion of the court.

From there being no statement of facts sent up in this case, it is impossible to know, with certainty, whether the charge given by the judge was relevant to the issue or not, and we might .well decline investigating its correctness. But from the fact that there was a note filed answering to the description of the one which the plaintiff averred, in his petition, had 'been paid to him, on which there is a receipt by Harris, as agent for the bank, of the amount due on the same from the plaintiff, a liberal construction of the charge of the court may be referred to it.

The possession of this note by the plaintiff, without any other -evidence of payment, would be presumptive evidence that he had satisfied the bank for the debt of which the note was evidence. This presumption would be sufficient to establish the fact, unless rebutted. We are not apprised by the record of any such rebutting evidence, and we cannot perceive that the court erred in its charge.

The charge asked and refused by the court is presented by the record under the same uncertainty as to the facts of the case. But if it is to be referred to any state of facts reasonably to be presumed from the record, it would be to the facts set out in the petition and to the note on file. This note seems to have been given by the defendant, to the corporation, under its 'corporate style of the Bank of the State of Arkansas, with the plaintiff as his security. All presumption, then, would be in favor of the legal and true character being such as was acknowledged by the defendant in contracting with the corporation. Unless it be true that by our act of the congress of the republic the plaintiff was bound to make the proof, as seems to have been contemplated by the defendant’s counsel in asking the court to give the charge. The act referred to (see acts of the extra session 9th congress, 1845) is most clearly intended to apply to cases where the corporation, or the assignee of the corporation, is a plaintiff. This suit is neither in favor of the bank, nor is it in favor of an assignee of the bank. It is for money paid to the bank by the security of the defendant. If the money could not have been legally recovered from the defendant, and his security had voluntarily paid it, it should have been shown by proof. If the laws of the state of Arkansas would not have held the defendant liable on his note, at the time it was paid voluntarily by his security, it should have appeared from the record. In the absence of such proof, the presumption is in favor of the liability of the parties to the note. We cannot perceive that the court below erred in either the charge given or the charge refused. The judgment is therefore affirmed.