Sawyer vs. Warner, 15 Barb. 282

By the Court, T. R. Strong, J. The allegation in the answer, that the defendant never gave the note to the plaintiff, is a denial of the allegation in the complaint, that the defendant made the note, so far as making includes delivery ; (Russell v. Whipple, 2 Cowen, 536, and cases cited ;) and also of the further allegation, that the defendant delivered the note to the plaintiff. The question to be tried on these allegations was, whether or not the note was delivered to the plaintiff, as alleged by him.

All that was necessary on the part of the plaintiff, in the first instance, to maintain his part of the issue, was the production of the note and proof of the defendant’s signature; and he did produce it and make that proof at the trial. This was prima facie evidence of the delivery of the note to the plaintiff. Those facts warranted the presumption of the fact of delivery, and in the absence of evidence to the contrary, the jury would have been required to find that a delivery was made.

But the defendant was at liberty in support of his side of the issue, independent of other modes, to prove facts inducing a contrary presumption, and in that way overcome the presumption from the plaintiff’s proof. And he was entitled to give in evidence any facts, calculated to satisfy the jury by fair and direct inference, that the note never was delivered by him. The evidence offered by him and received, disclosed conduct of the plaintiff wholly inconsistent with the fact of indebtedness by the defendant on the note, from which a strong presumption arose against the existence of that fact.

If the defendant had set up in his answer the defense of payment, it cannot be doubted that this evidence would have abundantly sustained it. Such a defense would have admitted the execution of the note—which includes delivery—and left nothing but payment to which the presumption could have been applied. Payment however was not pretended; the defense was that the note never had a legal existence. But 1 do not perceive why the presumption was not equally as available in support of that defense, as it would have been in support of the defense of payment.

It must be borne in mind that the presumption which the evidence raised was a presumption against the indebtedness; not that the indebtedness had been discharged, any moré than that it- never existed; it was in its nature applicable to any defense which denied the indebtedness; and the issue joined and circumstances of the case determined its application. A denial of the delivery of the note, Was a denial of the indebtedness upon it; it put in issue a fact indispensable to the indebtedness; and I am satisfied the evidence was properly received on that issue. (Christopher v. Sparks, 2 Jac. Walk. 223. De Freest v.

Bloomingdale, 5 Denio, 304.) [Cayuga General Term, June 6, 1853. Selden, Johnson and T. JR. Strongs Justices.] Judgment affirmed.