The referee has discussed the questions presented in this case with so much learning and ability, that a brief expression of our own views will suffice. 1. No cause of action arises from a bare agreement, with or without seal. A consideration of some sort is necessary to the forming of a contract. 2. The instruments sued on are promissory notes (1 R. S., 768, § 1). The affixing the seals to them did not alter their legal effect. If no seals had been affixed to them, they would have imported a consideration, and evidence of a want of consideration would have been just as essential to preclude a recovery upon them, as it is to defeat this action (2 Kent. Com., 584). 3. At common law there was a conclusive presumption that all contracts under seal, whether in the form of promissory notes or: otherwise, were made upon a good and suffi*218cient consideration; but that rule has been abrogated by the Revised Statutes, which provide that "in every action upon a sealed instrument, etc., the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner, and to the same extent, as if such instrument were not sealed.” (2 R. S., 406, § 77.) This language is too plain for dispute as to its meaning. Accordingly it has been uniformly held that the effect of that statute was to obliterate the former distinction on the point here involved, between a note with, and one without a.seal. (Case v. Boughton, 11 Wend., 109; Johnson v. Miln, 14 id., 199; Tallmadge v. Wallis, 25 id., 113; Craver v. Wilson, 14 Abb. [N. S.], 374; Home Ins. Co. v. Watson, 59 N. Y., 395.) 4. The evidence showed very satisfactorily that there was a total want of consideration for the notes. They purported on their face to have been given, not as evidence of any debt due to the payee, but for the purpose of enabling the payee to collect the amount thereof after the death of the maker, for the benefit of other persons named therein. The payee is the plaintiff; and he testified that he gave no consideration, and that he had no knowledge of - any consideration having been given for the notes. Like testimony was given by the beneficiaries named in the notes. Surely that testimony was sufficient to rebut the presumption of consideration, and to shift upon the plaintiff the burden of proving a consideration. The plaintiff asserts that the notes were given upon a valuable consideration, and proves the allegation by a legal presumption. The defendant asserts that the notes were given without consideration, and proves that the plaintiff gave nothing for them. According to the natural and usual course of busmess, if any consideration was given for the notes, it must have proceeded from the plaintiff. But it may have proceeded from some one else, and if it did, the plaintiff, and not the defendant must be presumed to know from whom it did proceed. In Rex v. Turner (5 Maule & Sel., 206-211), Bayley, J., remarked: “ I have always understood it to be a general mle that if a negative averment be made by one party which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative, is to prove it, and not he who avers the negative.” And in Elkin v. Jansen (13 M. & W., *219655-662), Alderson, B., on these remarks being quoted, said: “ they are right as to the weight of the evidence, but there should be some evidence to start it, m order to .cast the onus on the other side.” The fact that no person gave consideration for the notes, is not one that is susceptible of direct proof. If proved at all, it must be by means of circumstances or admissions, from which the fact is a necessary or reasonable inference. To reject such proof would put on the defendants the burden of proving an impossible negative. In Sawyer v. Warner (15 Barb., 285), this court held that a defendant may overcome a presumption arising from the plaintiff’s proof by proving facts inducing a contraiy presumption. (See, also, 1 Gr. Ev., § 79.) Such a rule is in accordance with general principles of frequent application in civil and criminal cases, and, in many instances, has been found to be indispensable to the attainment of justice. We think it should be applied in this case.
The result is that it became a question of fact for the referee to decide, whether the notes were given with or without consideration. We think that he correctly decided it in favor of the defendants.
The judgment is, therefore, affirmed with costs.
Barnard, P. J., and Dykman, J., concurred.Judgment affirmed with costs.