Lake v. Tysen

Welles, J. (after stating the facts.) — The giving of a promissory note is primd facie evidence of an accounting and ■ settlement of all demands between the parties, and that the maker was indebted to the payee upon such settlement, to the amount of the note. (2 Starkie’s Ev., Phil. ed. of 1834, p. 182; Defreest v. Bloomingdale, 5 Denio 304.) The presumption is only prima Jade, and is * 4631 explained; *but, until explained, it -* is to be taken as true, and affords sufficient evidence of the maker’s indebtedness in that amount. In the present case, the promise to pay for one-half of the horse was long before the date of the note upon which the action was brought. No evidence was given or offered to show for what, in fact, the note was given; and consequently, it is to be presumed, that all claims of the appellant against the respondent, including that [433] for the horse, were settled and adjusted at the time the note was given, and that the appellant, at that time, owed the respondent its amount. As this view disposes of the case, it is unnecessary to consider whether the other reasons assigned by the referee for rejecting the claim, were sufficient, or whether the appellant would have been entitled to set it off, provided he had shown, upon the trial, that it was not taken into account, when the note was given. The judgment of the court below should be affirmed with costs. Judgment affirmed.1 Footnotes [1] To the same point, see Dutcher v. Porter, 63 Barb. 15 ; Sherman v. McIntyre, 7 Hun 592; Treadwell v. Abrams, 15 How. Pr. 219 ; Miller v. Probst, Add. 344; Fairchild v. Dennison, 4 Watts 258.