Dow v. Rowell

12 N.H. 49 | Superior Court of New Hampshire | 1841

Upham, J.

The note declared on was given in Vermont, by parties residing there, and the lex loci prevails in its construction. 5 Cranch 289, Harrison vs. Sterry & al.; 6 Pet. 172, Cox & al. vs. Dick; 1 Mass. 181, Gilman vs. Brown & a.

The note was indorsed in New-Hampshire, which is a new and substantive contract; 6 Cranch 221, Slocum vs. Pomeroy; 2 Cond. 351; and, as betwixt the indorser and indorsee, would be subject to the laws of this state ; but such indorsement cannot, change the original liability of the promiser.

The exception relied upon at the trial was, that by the statute of Vermont, promissory notes, though payable to order, were not negotiable : or, if negotiable, that payment, notwithstanding the indorsement of the note, might at any time be rightfully made to the promisee, and his discharge would be valid, provided there was no fraud or collusion on the part of the promiser of the note. The statute relied upon, however, in Vermont, had been some years repealed prior to the giving of the note, and the note is subject to the ordinary rules of the common law.

In Britton vs. Bishop, 11 Vt. R. 70, it is held that a promissory note, indorsed before it falls due, is not subject to set-off against the promisee. There is nothing in this case to show that the note was indorsed subsequent to its date. The presumption is, that where a note is indorsed in blank, it is indorsed on the day of its date. 5 Mass. R. 334, Webster vs. Lee.

Under the facts, then, as now found in the case, the note must be regarded as indorsed before it was overdue ; and payment made to the promisee of the note, after the same had been rightfully transferred, cannot avail. There must, therefore, be

Judgment on the verdict.