15 Barb. 28 | N.Y. Sup. Ct. | 1853
The appellant’s counsel do not controvert the' conclusions of law, which the referee deduces from the facts found by him, All their points are intended solely to question the facts found from the evidence. They in
On the terms of the contract, and on the question whether the note was received in payment, the testimony was, to a certain extent, conflicting. But I think the referee has found according to the weight of the evidence. The probabilities, too, are all on that side of the question. In this state a promissory negotiable note is not prima facie payment of a pre-existing debt. {Burdick v. Green, 15 John. 247. Hughes v. Wheeler, 8 Cowen, 77. Conro v. Port Henry Co., 12 Barb. 27.) If its loss is accounted for, or it is produced and surrendered at the trial, the party may recover upon the original consideration. He has no legal presumption to repel, and the onus is cast upon the party insisting on payment, to prove an agreement to receive it in satisfaction. In this case the defendant failed to prove such agreement.
The promissory negotiable note of a feme covert is absolutely void. This is a plain elementary principle which needs no authority to support it. {Chitty on Bills, 24, Barbour’s ed.
Willard, Hand, Cady and C. L. Allen, Justices.]
The defendant; having agreed, upon amadequate- consideration, to pay the plaintiff fifty dollars, and having failed to do so, except by a promissory note which was void, and which has been given up to him, is legally as well as honorably bound to fulfill that promise. The referee decided right in holding him to his engagement.
The judgment of the referee must be affirmed.