Jennison v. Stafford

Metcalf, J.

Though these exceptions are not wholly free from obscurity, we understand that they mean simply this: That it was ruled by the judge, that a promissory note, payable in six months from date, given in consideration of the payee’s promise to forbear, for six months, to sue a third person on a just cause of action, is founded on a valid and sufficient consideration; and that, in a suit by the payee against the maker, to recover the amount of the note, the burden of proof is not on him to show that he has forborne according to his promise, but that it is for the maker to show that the payee has not so forborne.

Upon this understanding of the exceptions, we are ot opinion that they cannot be sustained. The ruling as to the consideration of the note was clearly right. 1 Steph. N. P. 255. And we think the ruling as to the burden of proof was also right. It was, in effect, nothing more nor less than a ruling, that, in a suit to recover the sum mentioned in a promissory note, the burden of proving a failure of the consideration of the note is on the maker, and not on the payee. Such a note is presumed to be founded on a valid and sufficient consideration, and the burden of proof is on the maker to establish the contrary. Chit, on Bills, (10th Amer. ed.) 68; Story on Notes, § 181. A fortiori, we think, is the burden on him to show a failure of the consideration. The argument of the defendant’s counsel, on this point, would have been conclusive, if the plaintiff had brought an action on a promise by the defendant to pay a sum of money, in consideration that the plaintiff would forbear to sue the defendant’s brother. In such action, the plaintiff must have averred, and must have proved in the first instance, that he had forborne according to his promise.

Exceptions overruled.