Dec. 1828.

#### Cox, Maitland & Co. v. Alfred M. Slad,

From Washington.

A bill of exchange expressed to be for value, is prima fade evidence of an executed consideration, and without proof of its being drawn for the accommodation of the payee, will not support an action by the drawer against the payee, or a set off in favour of the former against an action by the latter. But if the drawer was indebted to the payee when the bdl was drawn, it is evidence of a payment.

Assumpsit for the balance of an account.

On the trial, the Plaintiffs introduced an account, at the foot of which there was a memorandum signed by the Defendant, in the following words :

“ June 10th, 1826. I have to-day examined the abova account with Cox, Maitland & Co. and find a balance due them of five hundred and seventy-nine dollars seventy-two cents. And I am under the impression they have not credited me with a draft on Wilson & Binney, drawn in March, 1825, for six hundred dollars. This matter is therefore to be investigated, and I am to have credit for that amount, so soon as it shall appear I am entitled thereto. A. M- SLADE.”

On the trial, the Defendant under the plea of set-off,, introduced two bills of exchange drawn by him on Wilson & Binney, for g300 and g400, the bills were payable to the Plaintiffs, and were expressed to be for value received. It turned out, upon an inspection of the account, which was part of the case, although it did not appear to have been noticed in the Court below, that in March, 1825, the balance on account was considerably in favor of the Defendant.

His honor Judge Strange, instructed the Jury that a promissory note, or a bill of exchange, and especially one which on its face acknowledged the receipt of value, was prima fade evidence of a past consideration, or payment at the time&emdash;and that it was incumbent on the Defendant, in order to avail himself of the bills under his *9plea of set-off, to prove that no consideration had ever been given for them, or that they were given in payment of the Plaintiffs account. . .

A verdict being returned for the Plaintiffs for the amount claimed, the Defendant appealed.

Gaston, for the Defendant.

Badger & Deverenx, contra.

Henderson, Judge.

I agree with the Judge before whom this cause was tried, that a bill of exchange, and especially one expressed to be for value, is prima fade evidence of a past or present consideration ; and without evidence that nothing was given for it, money received upon it can neither be the ground of an action against the payee, at the instance of the drawer, or made the foundation of a set-off on the part of the drawer, in an action brought against him by the payee.— But had the drawer been indebted on account to the payee at the time the bill was drawn, I think that the extinguishment of that account, to the amount of the bill, would prima fade, form what the Judge calls the past consideration, and thus th,e bill would be taken as a payment of the account pro tanto. But without something to rebut the prima fade evidence, it could not be allowed as a set-off. In the present case it appears, from the account which forms part of this case, that at the time when these bills were drawn, as stated in the Defendant’s written acknowledgment at the foot of the account, (the only part of the case in which that time is stated) the Plaintiffs instead of being the creditors of the Defendant, were his debtors to a considerable amount, which necessarily repels all idea of this account forming any part of the past or present consideration of the bills in question. The Defendant having failed in making this essential proof, it is entirely unnecessary to examine any other part of the Judge’s charge.

Per Curiam. — Let the Judgment be affirmed.