MANUFACTURING Co. v. SUMMERS. defendant pending the suit, so that the complainant may lose the fruit of his recovery, or be hindered or delayed in obtaining it, the Court, in aid of the primary equity, will secure the fund by the writ of sequestration and injunction, until the main equity is adjudicated at the hearing of the cause." And this principle is now embodied in our statute on the subject. Revisal 1905, sec. 806. The property in controversy being represented by a cashier's check, a negotiable instrument, the rights of the plaintiff and defendant will largely depend upon our statute on negotiable instruments, Rev. 1905, vol 1, ch. 54. Under this statute these checks, whether certified or otherwise, are classed with bills of exchange payable on demand; and if negotiated by endorsement for value without notice, and within a reasonable time, a holder can maintain the position of a holder in due course. Ch. 54, Revisal 1905, secs. 2335 and 2336. As pertinent to this inquiry, secs. 2201 and 2202 of this chapter are as follows: "A holder in due course is a holder who has taken the instrument under the following conditions: (1) That the instrument is complete and regular upon its face; (2) that he became the holder of it before it was overdue and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it." Sec. 2201. "Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course." Sec. 2202. And sec. 2343 of the same chapter provides that in determining what is a reasonable or unreasonable time regard is to be had to the nature of the instrument and the facts of the particular case. 185186 52 53 193 MANUFACTURING Co. v. SUMMERS. What constitutes reasonable time will vary under the facts and circumstances of different cases, and this statute expresses as definite a rule as could well be established or considered desirable. On the facts of this case we think, and so hold, that so far as time is concerned, this negotiation was undoubtedly within a reasonable time. Again, it will be noted that the defendant Fuller, according to the claim made by him, purchased and paid for this check partly in a pre-existing debt due from Summers to himself. Many of the courts have heretofore denied that such an indebtedness was sufficient consideration to constitute one a holder for value within the meaning of the law merchant. 25 Our statute on this question, however, sec. 2173, enacts "that an antecedent or pre-existing debt constitutes value, and is deemed such whether the instrument is payable on demand or at a future time." If defendant's statement is accepted, no objection can be made, therefore, to the consideration because same was in part a pre-existing debt, this being declared sufficient by the express terms of the statute. We think, however, there was error in the charge of his Honor on the second issue, as to the burden of proof, which entitles the plaintiff to a new trial. This issue is not very well framed to present the question as to whether defendant Fuller was a holder in due course. It would seem to be desirable that the issue should be drawn so as to present the question affirmatively and in more precise terms: "Was defendant Fuller a purchaser of the check in good faith for valuable consideration and without notice of any infirmity in the instrument or defect in the title of Summers?" MANUFACTURING Co. v. SUMMERS. But, in whatever form presented, the burden of the issue is not on the plaintiff, as stated by the Court, but on the defendant. By sec. 2208 of said ch. 54 it is enacted: "Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired. the title as a holder in due course. But the last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title." The evidence and the verdict on the first issue established that the title of defendant Summers, who negotiated the check to defendant Fuller, was defective. This having been established, the burden was on the defendant.claiming to be a purchaser in good faith for value and without notice to make this claim good by the greater weight of the evidence. The statute, in this respect, only enacts the law as it has always existed, which puts the burden in such case on the person claiming to be a holder in due course. Bank v. Burgwyn, 108 N. C., 62; Eaton & Gilbert Commercial Paper, p. 393. For this error in the charge there will be a new trial on the second issue, and it is so ordered. New Trial. 55 COMMISSIONERS v. TRUST Co. COMMISSIONERS v. TRUST COMPANY. (Filed November 21, 1906). Statutes "Aye and No" Vote-Entries on Journals-Municipal Corporations-Ordinances-Enactment. 1. An entry on the legislative journal that "The bill passed its second reading, ayes 39, noes as follows:" then follows a list of those voting in the affirmative, without any reference to those voting in the negative, indicates that the bill passed by a unanimous vote and that there were no names to be recorded in the negative, and is a compliance with the requirements of Art. II, sec. 14, of the Constitution, that the ayes and noes shall be entered on the journals. Debnam v. Chitty, 131 N. C., 657, overruled. 2. Where the charter of a town provided that the Board of Commissioners might create a debt only after they had passed an ordinance by a "three-fourths vote of the entire board," the words "entire board" mean all the members of the board in existence and not all those provided for by the charter; and where seven Commissioners were elected and one resigned, the passage of an ordinance by a vote of five members was sufficient. ACTION by Board of Commissioners against Wachovia Loan and Trust Company, heard by Judge G. W. Ward at the September Term, 1905, of the Superior Court of FOR SYTH. The defendant entered into a contract with the town of Salem to purchase from the said town $100,000 par value of its bonds at the price of $101,750. The bonds were a part of a total issue of $125,000, issued pursuant to an election held on 26 June, 1906, under the provisions of the charter of the town of Salem, being chapter 40 of the Acts of 1891. On the tender of the bonds by plaintiffs, defendant refused to accept same on the ground that said bonds were not of a valid issue of bonds and did not constitute a legal obligation of the said town of Salem. Plaintiffs brought suit to enforce the contract, and the case was heard on the complaint and answer. From the judgment rendered, defendant appealed. COMMISSIONERS v. TRUST Co. A. H. Eller and Peele & Maynard for the plaintiffs. BROWN, J. It is contended by the defendant that the bond issue is void for two reasons: First, because the charter of the town of Salem, authorizing the issue, was not passed by the General Assembly and the ayes and noes entered on its journals in accordance with Article II, section 14, of the Constitution of this State. Second, because the ordinance directing the issue of the bonds and submitting the question to a vote of the people was not passed by a three-fourths majority of the entire Board of Commissioners of the town, as required by the charter. In respect to the first objection made to the validity of the bonds, it is admitted that the journals of the House of Representatives are entirely regular and that the bill was passed by the House in strict conformity to the organic law. But on its passage by the Senate it is contended that the negative votes were not recorded. The entries on the Senate Journal in respect to this bill are as follows: "Senate Journal, Senate Chamber, January 23, 1891. The bill passed its second reading. Ayes 39, noes .., as follows:" Then follows a list of those voting in the affirmative, without any reference to those voting in the negative. "The bill passed its third reading. Ayes 34, noes .., as follows:" Then follows a list of those voting in the affirmative, with no further reference to those voting in the negative. It is admitted that the case of Debnam v. Chitty, 131 N. C., 657, is an express authority sustaining defendant's contention. After much reflection, we are unwilling to follow the decision of the Court in that case, in so far as it holds that the entries upon the journal do not indicate that there were no negative votes. In the dissenting opinion of Mr. Justice Clark it is said: "The expression, 'Passes by the |