
    Fitch v. Redding.
    The presumption that a check is founded upon a good consideration is not absolute, it may be repelled; but it can only be repelled by positive affirmative proof of a -want of consideration. The presumption remains, so long as its truth may be reconciled with the evidence adduced to impeach it.
    
      Where a maker of a check has no funds in the bank upon which it was drawn, he is not entitled to notice of protest.
    A defence to a written promise to pay, which' rests upon the single ground of the absence of a valuable consideration, does not deserve much favor in a court of justice.
    The rule of law which permits such a defence, is almost peculiar to our own jurisprudence, and is condemned by the general sense of legislators and jurists, as well as of merchants. . •
    Where the maker of a note, invalid between the parties for want of consideration, gives a check for the note, it seems that he is liable upon such check.
    (Before Doer, Mason, and Campbell, J. J.)
    June 10, 11;
    July 15, 1850.
    This was an action brought in tbe supreme court, to recover tbe amount of a check drawn by tbe defendant on tbe Atlantic Bank, Brooklyn, for four, hundred and sixty-two dollars and forty-five cents, payable to tbe order of tbe plaintiffs, and dated July 21st, 1847.
    The cause was referred to a sole referee. Upon tbe trial, tbe plaintiffs proved tbe making of tbe check, its presentment at tbe bank, and its non-payment. It also appeared, that, at tbe time of tbe presentment of tbe check, and for a long period thereafter, tbe defendant had no funds in tbe Atlantic Bank, out of which tbe check could have been paid. One of the plaintiffs' clerks testified, that, after tbe check was dishonored, be went to the defendant with it,, and that tbe defendant apologized for its not being paid, and gave as a reason, that it was not convenient at tbe time, but 'promised to eall in a féw days and pay it. Tbe plaintiffs rested. It was proved on the part of tbe defendant, that, some time prior to tbe making of'the check, tbe defendant, as tbe agent of one Joel Hall, who resided in Connecticut, bad purchased from -the plaintiffs a cargo of stone for Hall, of tbe value of $513.07. After tbe purchase, Hall died, and tbe plaintiffs applied to the defendant for a settlement of tbe account, and tbe matter was finally arranged by tbe defendant’s giving to tbe plaintiffs bis promissory note at six months, for the amount, and the plaintiffs’ giving tbe defendant a receipt in tbe following form:
    “Received November 21, 1845, from Mr. Thomas H. Red-ding, his note for six months, for five hundred and thirteen dollars and seven cents, for cargo of stone. The conditions upon which the said note is given, is as follows: — That on the 8th day of September, 1845, the said Thomas H. Redding purchased of us the amount of said note in stone, as the agent of Joel Hall, lately deceased. Now it is hereby understood, that, in case the administrator of said Joel Hall’s estate does not admit the said amount in the closing of the accounts between the said Thomas H. Redding and the late Joel Hall, then this amount to be returned to Thos. H. Redding, and collected by us of the estate of Joel Hall, $513.OOj^ bill book.
    “E. Pitch & Co.”
    The note was renewed once or twice upon the same terms. No proof was offered to show that the check was given in renewal of either of the notes given under the arrangement between the parties, except that one of the plaintiffs’ witnesses, in reply to a question put to him by the defendant’s counsel, testified, “I understood from the plaintiffs that the check in suit originated from the debt of Joel Hall, for which Redding had given his note.” Nor was there any evidence offered or adduced to show that the administrator of Hall’s estate had rejected the claim upon his estate.
    The parties having rested, the cause was submitted to the referee, who subsequently made his report in favor of the defendant. It was then transferred to this court, where the plaintiffs moved to set aside the report.
    
      A. G. Bradley, for the plaintiffs.
    
      J. M. Van Goit, for the defendant.
   By the Court.

Duer, J.

The preliminary objections that the check in suit was not duly protested for non-payment, and that, if dishonored, due notice of the dishonor was not given to the defendant, were properly overruled by the referee. As the defendant had no funds in the bank upon which the check was drawn, he was not entitled to notice, and had he been notified, his subsequent promise to pay the check would have been a waiver of the defence. We must therefore consider the case upon its merits, and determine whether the finding of the referee in favor of the defendant was agreeable to law and to the evidence.

The check was proved to have been given by the defendant, and it is not denied that the referee was bound to presume that it was founded upon a valid consideration. Hence the bur-then of proof was cast upon the defendant. The presumption which the law raises in these cases, is not absolute; it may be repelled, but it can only be repelled by positive affirmative proof. It can only be repelled by showing its falsity; and its falsity is not shown unless it is a necessary deduction from the facts that are proved. The presumption remains, so long as its truth may be reconciled with the evidence. The application of these remarks will hereafter be seen.

The reasoning of the referee upon the facts of the case seems to have been as follows: — As the original debt to the plaintiffs was contracted by the defendant, not on his own account, but as the agent of Hall, he was not personally liable for its payment ; consequently there was no meritorious consideration for the promissory note, which, at the solicitation of the plaintiffs, he consented to give; and as the check was founded upon this note, it is a necessary consequence that there Ayas no consideration for the check.

We confess that this reasoning has failed to satisfy us. It may be true that the defendant was not originally liable for the debt to the plaintiffs; and it may also be true that the note which he gave was void in its origin. Upon these, questions we forbear to express any definite opinion; but, admitting these to have been rightly decided in favor of the defendant, it by no means follows that he was not liable for the debt when he gave his check for its payment; nor that his note, although void in its origin, had not been rendered valid by subsequent circumstances.

Let it be admitted, as the counsel for the defendant insisted, that when the defendant gave his note, it was the understanding of the parties that he should not be liable for its payment at all, unless its amount should be allowed to him in the settlement of his accounts with the administrator of Hall; but that in this event, he was to be liable,.has not-been denied and cannot be doubted. That such was the intention of the parties when the note was given, is placed beyond the reach of doubt, by the' terms of the receipt, which at that time was delivered to the defendant. For aught that appears, the credit which, by the terms of the receipt, he was to claim from the estate of Hall, has been allowed to him. For aught that appears, he may have received from the estate, before he gave his check, the whole amount of his note. The legal presumption, therefore, of a valuable consideration for the check, is entirely consistent with the evidence, and, so far from having been disproved, it retains all its original force.

But we do not stop here; the case is far stronger than we have stated it. Not only is the presumption of law unrepelled, but there is an additional presumption arising from the facts of the case, which the defendant has wholly failed to meet, and which, unexplained, strike the mind with the force of a positive conviction. What are the facts ? There is no evidence to show, nor the slightest reason to suppose, that there was any special agreement in relation to the check. We are told that the note which the defendant gave was an accommodation note, but it would be absurd to say that the check was an accommodation check, and that the plaintiffs were to provide the funds for its payment. Nor can it be pretended that it was a lent check, the amount of which, if paid by the bank, the plaintiffs were afterwards to refund to the defendant. It is expressly sworn, that after it had been ascertained that the defendant had no funds in the bank, he admitted his liability on the check, and promised to pay it. It is therefore not merely the presumption of law, but the necessary result of the evidence, that the check was given and accepted for the purpose of satisfying a debt which the defendant acknowledged to be then due; and it is quite incredible that this acknowledgment would have been made if the fact were otherwise. If the understanding of the parties really were that the defendant was not to be liable upon the note at all, unless its amount should be allowed to him from the estate of Hall, and if his claim upon the estate ’had been made and rejected, is it not morally certain that, instead of giving his check, he would havé demanded, as he most justly might, the return of his note and of the money he had previously paid ? If he were not to be liable at all, unless he collected the debt from the estate of Hall, was not his admission of this liability.an admission of the fact of such collection ? and does not the probable inference grow into certainty, when we reflect that if the administrator of Hall had rejected his claim upon the estate, it was in his power to have proved the fact, and that ho such evidence was given or offered? We do not hesitate to say, that if this evidence existed, and would have been a defence, he was bound to produce it; but we are not prepared to say that this evidence, if given, would have released him from his liability. Perhaps, under the peculiar circumstances of the case, he is estopped from denying that there was an adequate consideration for the check. The plaintiffs held his promissory note as evidence of a subsisting debt, and upon that ground demanded its payment; and, under these circumstances, the surrender of the note was, perhaps, a sufficient and full consideration. The check was also for a much less sum than the original note, and may therefore have been the result of a compromise; nor is the inference disproved by the fact that he had made a previous payment oh the note, since the amount of that payment does not appear. Upon the questions which these circumstances suggest, as they may hereafter arise, we reserve our final opinion, contenting ourselves with now intimating to the counsel for the defendant, that the law is well settled, that the giving up of a doubtful right is, in all cases, a sufficient consideration to support a promise, and that, when no fraud can be imputed, a promissory note, or . other security given upon the compromise of an existing claim, is undoubtedly valid, even where the claim itself may be shown to have been wholly groundless. (1 Brownlow, 6; 1 Rolle R.' 23; Com. Dig, Tit. Assumpsit F. 8; Langridge v. D'Orville, 5 B. & Ald. 197; Russel v. Cooke, 3 Hill, 504 ; hitty on Contracts, 42, 43, note 1.)

We add-a., general observation.- • We cannot think'that a defence which is. rested upon the single ground of the- absence of a, valuable consideration,, deserves much favor in a court of justice.- Where the promise is delibérate, and is reduced to writing, the rule .of law which permits' the defence, (although the fact, is .otherwise stated by many of our-text writers,) is almost peculiar to our.own jurisprudence; and is condemned by the general sense, of legislators and-jurists, as well as of merchants. Still, .as the-rule undoubtedly exists, it must be" obeyed, and the-defence,.when clearly, established, be admitted to prevail.; but it ■ is not inconsistent to say; that, considering the-nature.:of the .defence, the party who relies upon it should-be held to the strictest proof, and every doubt that he suffers to remain, be decided against him. In the present case,'however, these, observations are . not necessary to justify our- decision, since our. objections, to the defence apply not merely to the sufficiency .of its-proof, but to the reality of .its existence.

.Eor the reasons-that have been given, the report of the referee must be set aside, and a re-hearing granted, with costs, to abide, the event.  