Stacker v. Hewitt

• Citation: 1 Scam. 207,2 Ill. 207,1835 WL 2178
• Parties: JOHN STACKER, SAMUEL STACKER and THOMAS T. WATSON, plaintiffs in error,v.TYLER D. HEWITT, defendant in error.
• Decision Date: 31 December 1835
• Court: Supreme Court of Illinois

1 Scam. 207

2 Ill. 207

1835 WL 2178 (Ill.)

JOHN STACKER, SAMUEL STACKER and THOMAS T. WATSON, plaintiffs in error,

v.TYLER D. HEWITT, defendant in error.

Supreme Court of Illinois.

December Term, 1835.

THIS cause was tried at the October term, 1835, of the Gallatin Circuit Court, before the Hon. Justin Harlan, and a judgment rendered for the defendant in the Court below, upon which the plaintiffs sued out the writ of error herein.

H. EDDY, for the plaintiffs in error, cited the following authorities:

R. L. 490 § 12 (Gale's Stat. 531); 3 Bibb, 317; 1 Pirtle's Dig. 146, § 11, 16; do. 148, § 27; do. 154, § 69; 4 Monroe, 531; 1 Marsh. 332; 2 J. J. Marsh. 420; 3 J. J. Marsh. 167.

JESSE J. ROBINSON, for the defendant in error.

SMITH, Justice, delivered the opinion of the Court:

This was an action of debt on a note of hand. The declaration contains the usual count on a sealed instrument. The defendant pleaded that the note was given without any consideration whatever.

The plaintiffs took issue on this plea and submitted both law and fact to the Court for trial. On the trial, as shown by the bill of exceptions, the plaintiffs offered in evidence the note which was under seal and expressed to have been given for value received. To this evidence the defendant demurred ore tenus and the Circuit Court adjudged the proof insufficient, and there being no other evidence offered, gave judgment for the defendant.

By the 12th section of the practice act it is provided “That no person shall be permitted to deny on the trial the execution of any instrument in writing, whether sealed or not, upon which action may have been brought, unless the person so denying the same shall verify his plea by affidavit.” (R. L. 490; Gale's Stat. 531.) This provision fo the law made the mere production of the note evidence without proof of its execution; and, indeed, without the statute it was already admitted by the defendant's plea of want of consideration.

It is equally certain that the production of evidence to support the plea of no consideration, being an affirmative plea, devolved on the defendant. There being no evidence in support of it the Court evidently erred in rendering judgment for the defendant. The position assumed by counsel, that the plea was the affirmation of the non-existence of a fact not susceptible of proof by the defendant, and that therefore the onus probandi to show the actual consideration of the note ought to devolve on the plaintiffs, is not, we apprehend, by any means correct. The entire absence of a consideration for the execution of the note would be a fact as completely within the means of proof by the defendant as the plaintiffs' ability to show a consideration therefor. By the rule of the common law, the note being under seal imported a valuable consideration, and no inquiry could be had in relation thereto. So a note not under seal, expressing on its face to have been given for value...