Flemming's Executors v. M'Clain

The opinion of the Court was delivered by Rogers, J. That a check, of itself, is not evidence of a debt or loan of money, is well established by authority. The presumption is, it is given either in payment of a debt, or that cash was given for it at the time. This is ruled in Aubert vs. Walsh, 4 Taunton 293. A check was there produced as evidence of a debt, but it was held that alone, it was not sufficient; so in Geatorex’s executors vs. Gerrish, 4 Esp. 9, where a draft given by a testator on his bankers, payable to the defendant, and it was proved by the bankers that the money was paid to the defendant, out of the money of the testator, then in their hands, it was ruled to be no evidence of a debt. Kenyon, O. J., observed, this is no evidence to establish a debt, for no evidence is offered of the circumstances under which the draft was given. It might be, in payment of a debt due by the testator, or the defendant might have given cash for it at the time; so in Pearson vs. Darus, 1 Mood. & Rob. 365. The production of a check is not evidence of any loan; if it be evidence of any thing, it is rather evidence of payment; and in Fletcher vs. Manning, 12 Mees & Welsby 571, it was held that “ cancelled checks were not evidence of a loan; checks are prima facie evidence of payment of a debt.” And in our court, Patton vs. Ash, 7 S. & R. 125, it was held, that in order to charge a person to whom a check was paid with a debt, “ some evidence should be given to explain the consideration of the check, for it may have been given in payment of a debt due from the drawers;” and in Baker vs. Williamson, 4 Barr 469, it is said, “it never was hold in any court, that a check was evidence of a gift.” Erom a review of the cases the rule appears to be well settled, and the only [179] question which remains is, was there any evidence to rebut the presumption; any evidence of the circumstances under which the check was given; evidence to explain the consideration of the check. For this purpose, the defendant in error relies on the testimony of Barr; also, on the close intimacy in business, between Flemming and M’Clain, at the time the checks bear date. And the fact that M’Clain paid bills of Flemming, and also at other times loaned him money and checks. The evidence, however, as it appears in the bill of exceptions, is too vague and unsatisfactory. All that Barr says is, that Flemming got money and checks several times from M’Clain, and that he filled up the checks; this may very well be in perfect consistency with the fact, that this individual check was in payment of the debt; he does not even say he filled up this check. That he loaned him various small sums of money, at several times previously to the date of the checks, which were carefully charged in the account, if it proves anything, rather tends to show that the checks were given for cash advanced at the time. The mere fact that there were transactions between the parties, will not suffice, unless these transactions connect themselves directly with the subject in controversy; Aubert vs. Walsh, 4 Taunton 293, is a case very like the present. We are therefore of opinion the court erred in admitting the checks, as evidence of money lent and advanced. There is nothing in the second assignment of error, as the objection to the admission of the receipts, was withdrawn at the trial. Judgment reversed and venire de novo awarded.