Jerome v. Whitney

7 Johns. 321

• Court: New York Supreme Court
• Decided: February 15, 1811
• Status: Published

Opinion

Per Curiam.

This is not a promissory note under the statute, for it is payable in “ neat cattle,” and it therefore required a consideration to be stated, either by showing the acknowledgment of one upon the face of the note, or otherwise by particularly averring it, as in a declaration upon a special agreement. The note is expressed to be given for value received, and the question is, whether that is not evidence, prima facie, of a consideration. Whatever might have been the true import of the decision in Lansing v. M'Killip, (3 Caines, 286.) in respect to this question, is not now very material, for since the case of Jackson v. Alexander, (3 Johns. Rep. 484.) the court cannot consistently say, that the acknowledgment of value received is not evidence of consideration in a note, as well as in a deed. It is sufficient to cast upon the defendant the burden of proving that there was no consideration. This rule is rea- . sonable and convenient. Notes payable in specific chattels are very common, and to compel the plaintiffs, in every instance, notwithstanding the note is expressed to be for value received, to prove the true aM id~entical$ consideration at large, is imposing upon hIm a• great and unnec~ssary hardship. The confession bf value bythe maker clf the note ought to be sufficient in the first in' stance.

Had the plaintiff in this ease declared upon the note,stating it to have been given for value received, and had not set forth a special and" particular consideration, the production and proof of the note would have been sufficient to have put the defendant upon his- defence.- But having specified in what that value consisted; he was-bound to prove the averment as laid. A particular" value charged was materially different from-value in general; and so it was lately held, in England, in Knill v. Williams, (10 East, 431.) On this ground the verdict must be set aside for misdirection, and a new trial awarded, with costs to abide the event; but the plaintiff is at liberty to amend his declaration, by striking out- the special consideration set forth.

New trial granted-.