The opinion
By the Court, Willard, P. J.
The appellant’s counsel do not controvert the' conclusions of law, which the referee deduces from the facts found by him, All their points are intended solely to question the facts found from the evidence. They in *31 sist that the testimony did not authorize the referee to find the facts as he has stated them, but on the contrary that he ought to have found that the .note was received in payment; that the said Sally Ann had separate property; and that the note was not void. The code of 1852, probably allows the appellants to raise these questions on appeal; (see ) 348, of Code of 1852;) and perhaps also he could have done so under the code of 1851. When the object of the appeal is to question the finding of the referee upon the facts, the case becomes analogous to a motion under the former practice, to set aside the report of referees as against evidence. It has been well settled for a long series of years, that the court will not disturb the finding of referees, any more than the verdict of a jury, on a difference of opinion on the weight of evidence. If there is an absence of evidence, or so great a preponderance of evidence against the finding as to indicate prejudice, partiality or corruption, the court will interfere. The following are some of the recent cases on the subject. (Green v. Brown, 3 Barb. S. C. Rep. 119. Quackenbush v. Ehle, 5 Id. 469. Eaton v. Benton, 2 Hill, 576 . 3 Id. 256. 2 Wend. 356 .)
On the terms of the contract, and on the question whether the note was received in payment, the testimony was, to a certain extent, conflicting. But I think the referee has found according to the weight of the evidence. The probabilities, too, are all on that side of the question. In this state a promissory negotiable note is not prima facie payment of a pre-existing debt. {Burdick v. Green, 15 John. 247 . Hughes v. Wheeler, 8 Cowen, 77. Conro v. Port Henry Co., 12 Barb. 27 .) If its loss is accounted for, or it is produced and surrendered at the trial, the party may recover upon the original consideration. He has no legal presumption to repel, and the onus is cast upon the party insisting on payment, to prove an agreement to receive it in satisfaction. In this case the defendant failed to prove such agreement.
The promissory negotiable note of a feme covert is absolutely void. This is a plain elementary principle which needs no authority to support it. {Chitty on Bills, 24, Barbour’s ed. *32 Marshall v. Rutter, 8 T. R. 546. Reeve’s Dom. Rel. 98. Conde v. Shepherd, 4 How. Pr. Rep. 75 .)
[Schenectady General Term,
January 3, 1853.
Willard, Hand, Cady and C. L. Allen, Justices.]
The defendant; having agreed, upon amadequate- consideration, to pay the plaintiff fifty dollars, and having failed to do so, except by a promissory note which was void, and which has been given up to him, is legally as well as honorably bound to fulfill that promise. The referee decided right in holding him to his engagement.
The judgment of the referee must be affirmed.