Child v. McKean

The opinion of the Court was delivered by

The call upon the plaintiff to show the consideration he gave for the acceptance, it has been conceded on the argument, was not adapted to the proof in the cause. The consideration was distinctly proved by the defendant’s evidence, and was unquestionably an adequate one. The fairness of the transaction was not at all questioned.

The action, however, being between the original parties to the bill, it was competent to the defendant to show the want of consideration, or any facts from which it could be legitimately deduced, that the plaintiff was not the real proprietor of the bill, but held it in trust for third persons against whom a defence existed; and this was the ground taken upon the discussion of the present rule. Childerston v. Hammond, 9 S. & R. 68, was indicated as direct authority for the position that the jury, and not the court, are to decide upon proper evidence produced on the trial, whether the instrument declared upon belonged to the plaintiff, or whether a third person against whom the defendant claims to set off a debt is the equitable owner. The relevancy of that case to the purpose of its citation is unquestioned. But. I am unable to discover a single fact in this cause, from which the inference contended for, could be drawn. If a tittle of evidence had been adduced for the jury to pass upon, it ought to have been submitted to them. But, it seems to me, it would have been *196plainly erroneous to have given any other directions than were given. See Whitehall v. Wilson, 3 Penn. R. 405; Dubois v. Lord, 5 Watts 49; Newbaker v. Alricks, ibid. 183; McClung & Trevor v. Willard, ibid. 275.

Rule discharged.