Baldwin v. Walden

By the Court. Stephens, J., delivering the opinion. 1. We think the continuance was properly refused for two reasons: First, because the opposite party fully admitted all that could have been proven by the absent evidence if it had been present; and second, because there was no showing that proper diligence had been used to have it present. It did not appear but that the defendant had ample time to get established copies of the missing garnishment papers, after they had been ascertained to be missing. 2. We think the charge was correct. The credit on the note was in the handwriting of the defendant, and that fact showed that it was put there with his approval of its correctness. It bore date subsequent to all the cross-claims of the defendant against the plaintiff, and these claims were all matters of open account. Is it to be supposed that a prudent man would pay money on his note, without having a settlement of his open accounts against the holder of it ? When men hold cross-demands against each other, prudence suggests that neither should pay money to the other, except as the result of a balancing. The credit, therefore, did afford a presumption that the existing cross-demands were covered by it, and that presumption ought to have prevailed, unless rebutted. Judgment affirmed.