Williamson v. Mills

2 Hilt. 84

• Court: New York Court of Common Pleas
• Decided: October 15, 1858
• Status: Published

Opinions

Daly, J.

It appears, by the defendant’s own showing, that when the bank charged the loan on the $500 note against the account of Jacob Mills, that Jacob had not funds in bank sufficient to pay it. Charging it against Jacob’s account, therefore, could not operate as a payment of the loan unless the bank so intended. That they did not so intend, is evident from their demanding the return of the securities withdrawn by Jacob Mills, and that the defendant concurred in these views appears by his returning the securities to them. If it could be gathered, from the testimony, that the $406 which Jacob had on deposit, had been applied by the bank on the $500 loan, then the indebtedness on that loan would be reduced to $94, and, as the bank, on the 21st of June, discounted the collaterals for the benefit of Jacob Mills, it might be inferred that they meant to look to him for the $94, and not to rely upon the collaterals as a security for its payment. But, for all that appears in the testimony of Jacob Mills, he may have drawn from the bank all that he had upon deposit. The cashier of the bank swears positively that the $500 note has not been paid, and Jacob Mills does not swear that it has been. The extent of his testimony is that he had $406 on deposit when the note was charged, and it is to be presumed that if he left that sum in the bank, and has not withdrawn it, he would have said so. To rebut the positive statement of the cashier that the loan had not been paid, it was incumbent upon the defendant to have shown, by the testimony of Jacob Mills, that Jacob had never withdrawn the $406, but left it to be applied by the bank towards the payment of the loan. If he had shown this, then the fact that the bank had charged the loan against the account of Jacob, and that they had realized'$106.54 upon the col ■ laterals, which together was more than the $500 note, it would have warranted the conclusion that the bank had been paid the loan for which the collaterals were security, and that the defendant was not liable to them upon the note in suit. The subsequent discounting of the collaterals by the bank, for the benefit of Jacob, was a strong circumstance to show that they regarded the $500 note as paid; that, by making a new loan upon them, they no longer held them as security for the former loan ; but it was not enough, in the absence of certain and positive evidence that the $406 had gone to the use of the bank. This the defendant could easily have shown; and, as he did not, the presumption is to be taken against him.

I think the judgment should be affirmed.

Ingraham, First Judge, concurred.