Anonymous

3 N.C. 34

Opinions

Can you show any authority to justify the admission of such testimony after a judgment by default?

Taylor: I can, and will produce it. The subject of a consideration being necessary or not is treated of very copiously in 1 Fonb., 333; all the authorities are there collected, and a conclusion drawn from them that a consideration is necessary, and that without one an action cannot be supported. The defendant may give in evidence that the consideration is illegal, Bull. N.P., 275; and though there be a judgment by default, the note must be produced and proved on executing the writ of inquiry, Bull, N. P., 278; and it cannot be proved to be a valid note unless it have a good consideration, upon a judgment by default; the plaintiff cannot recover any greater damages than he can prove to the jury sworn to assess them, 2 Burr., 907,908. This was so laid down by LordMansfield in an action upon a policy of insurance where the declaration was for a total loss, and the evidence proved a partial one only, where the question was whether the plaintiff, having declared for a total loss, could recover less, or for a partial one; and I cannot perceive any difference in reason between a default on a promissory note and one upon an action an a policy of insurance.