11 Vt. 70 | Vt. | 1839
The only question, presented for the consideration of this court, arises upon the third and fourth pleas of the defendant. These pleas are substantially the same, and amount to nothing more than an alleged agreement on the part of Ballou, the original payee of the note in suit, to apply a lesser note, given by him to the firm of Buskirk & Proudfit, and by them indorsed to the defendants, upon the note now sued. It is alleged, that this agreement was made on the 29th of August 1837, and that, at that time, and for a long time thereafter, to wit, twenty days, Ballou was the owner of the note now sued in the name of plaintiff. The latter note fell due on the first day of September 1837, and the above allegation is by no means equivalent to an allegation that Ballou negotiated the note to the plaintiff, when the same was overdue. For the allegation, by way of a continuando, being under the videlicet, is immaterial, and the whole allegation is satisfied by proof that the payee of the note retained it till the 29th day of August. It is to be taken, then, that the note was negotiated while it was still current, and the signers cannot, as against this plaintiff, avail themselves of the defence attempted, without showing notice of such agreement brought home to the plaintiff at the time of receiving the note. The pleas in controversy contain no such allegation, and are therefore bad.
But as the counsel seem to understand the fact in the case to be, that the note was negotiated to the plaintiff when overdue, and desire a decision upon the merits of the question thus presented, the court have passed upon it.
There can be no doubt that, at common law, the holder of a negotiable bill or note, who receives it from the payee after it falls due, takes it, subject to all defences which attach to the note or bill in the hands of the indorser.
It was first doubted whether a bill or not£, overdue, could be so negotiated as to enable the indorsee to sue it in his own name. But, upon the opinion of merchants, the court of king’s bench decided such action would lie. Mitford v. Wallicot, 1 Salkeld 129. But in Brown v. Davies, 3 Term R. 80, and Tayler v. Mather, Id. 83, it is expressly decided, that the indorsee, in such case, takes the bill or note subject to all defences. In the former case, some stress is laid upon the fact, that the bill had been noted for non-payment, but in
There does not seem to be any necessity for pleading the matter of this note. It is, at most, parí payment. And under the recent Eng. rules oí pleading, stat. of 5 Will. 4, where payment is in all cases required to be pleaded specially, part payment is not required to be so pleaded. Lediard v. Boucher, 32 C. L. R. 413. Shirley v. Jacobs, lb. 414. And by the old cases it would seem that each plea must contain an entire answer to the whole declaration. But if the plea begin and end, as only in bar of part of the action, I am not prepared to say, that by recent decisions such plea is bad on demurrer. By the old rule, each separate plea must contain a full answer to the entire declaration or count. In assumpsit, the defendant might deny a part, pleajii a tender to part, and payment of part. 1 Saunders’ R. 28, and notes, Earl of Manchester v. Vale. Birks v. Trippet, lb. 33 and notes. Osborne v. Rogers, lb. 267 and note .(1). But as the rule is now understood, it only requires that the defendant’s plea shall be an answer to all that portion of the plaintiffs declaration which it assumes to answer. 1 Chit. Pl. 511. See also Sterling v. Sherwood, 20 Johns.R. 206. Ed