Woodward v. Genet , 2 Hilt. 526 ( 1858 )

Hilton, J.

This action was tried before me at special term without a jury. The defendant having offered no testimony, it is to be determined whether the instrument described in the complaint, and which is in the usual form of a bond, but without seal, is any evidence whatever of an indebtedness. Its plain import is, that at the times specified the defendant will pay to the plaintiff certain sums of money ; and although it is not in the usual form of promissory notes, yet there can be no doubt that it is such, judged either by the rules of the mercantile law, or by the provisions of the Revised Statutes. 1 R S. 768, § 1; Fisher v. Leslie, 1 Esp. R. 426; Israel v. Israel, 1 Camp. 499; Casborne v. Dutton, 1 Wheaton’s Selwyn’s N. P. 289; Shuttleworth v. Stevens, 1 Camp. 407; Bayley on Bills, 5; Chadwick v. Allen, Strange R. 706; Byles on Bills, 3; Kimball v. Huntington, 10 Wend. 675, 679; Luqueer v. Prosser, 1 Hill, 256; Bruce v. Westcott, 3 Barb. S. C. 374; Curtis v. Leavitt, 15 N. Y. R. 1, 73, 156.

But in addition to the presumption of indebtedness or consideration, which the law implies from all instruments of this character, the proof shows that it was actually given in part payment of the purchase money of certain land in Pennsylvania, conveyed by the plaintiff to the defendant. So that, whether it is regarded as a promissory note, or as an acknowledgment of a promise to pay an indebtedness actually owing by the defendant, it is clear that, upon the whole case, the plaintiff is entitled to judgment for the two instalments due by the terms of the instrument, amounting to $10,000, together with interest, at 7 per cent, per annum, upon the sum of $35,000, from February 17th, 1857.

The clerk will compute the interest, and enter judgment accordingly.