Cox, Maitland & Co. v. Slad

13 N.C. 8

• Court: Supreme Court of North Carolina
• Decided: December 5, 1828
• Status: Published

Opinion

Henderson, Judge.

I agree with the Judge before whom this cause was tried, that a bill of exchange, and especially one expressed to be for value, is prima fade evidence of a past or present consideration ; and without evidence that nothing was given for it, money received upon it can neither be the ground of an action against the payee, at the instance of the drawer, or made the foundation of a set-off on the part of the drawer, in an action brought against him by the payee.— But had the drawer been indebted on account to the payee at the time the bill was drawn, I think that the extinguishment of that account, to the amount of the bill, would prima fade, form what the Judge calls the past consideration, and thus th,e bill would be taken as a payment of the account pro tanto. But without something to rebut the prima fade evidence, it could not be allowed as a set-off. In the present case it appears, from the account which forms part of this case, that at the time when these bills were drawn, as stated in the Defendant’s written acknowledgment at the foot of the account, (the only part of the case in which that time is stated) the Plaintiffs instead of being the creditors of the Defendant, were his debtors to a considerable amount, which necessarily repels all idea of this account forming any part of the past or present consideration of the bills in question. The Defendant having failed in making this essential proof, it is entirely unnecessary to examine any other part of the Judge’s charge.

Per Curiam. — Let the Judgment be affirmed.