3 Stew. 485 | Ala. | 1831
We will first, without reference to the particular situation of the parties, consider the general question, whether an agreement by parol, extending day of payment on a promissory note, is binding, so that suit cannot be brought, until the term of forbearance has expired ? Chitty on Bills, p. 47, in relating the different requisites of bills of exchange and promissory notes, says, that “ if the instrument, on its face, purports to be an absolute'engagement, to pay money at a certain time, no parol evidence of an agreement, at the time, to renew or give indulgence, will be admissible to defeat the action on the bill or note: arid for this, there is ample authority.” But the principle only goes to exclude evidence of a parol qualification, made at the time of the inception of the .bill. For, the same author, on page 292, when speaking of the effect of giving time to the acceptor of a bill, on the -liabilities of the drawers and indorsers, distinctly states, that “if a holder agree to give indulgence for a certain period of time, to any one of the parties to a bill, this takes away his right to call on that party for payment, before the period expires,” &e. By tracing the authorities on this subject, it will be found, that the main reason why securities to notes, and indorsers and drawers of bills, are released from liability, by the holder’s giving day, without their consent, to the principal or acceptor, is, because, by snch an agreement, he puts it out of his power to sue, for a time longer than was originally contemplated; thereby changing.the nature of the contract, and increasing ^[je r¡sj5 0f security.
If, as alleged in the plea, he was the sole owner of the note, he could have received payment, and given a valid discharge. And, if so, why should he be restrained from making a contract, giving further day of payment? His control over the note was complete; and, therefore, as ample for one purpose as another.
Conceding all this, however, it is said, that such a contract, made by one holding a note, by mere delivery, should not ef-feet the rights of another, who might subsequently acquire possession. — That, as the note would carry with it, no evidence of such an agreement, the rights of innocent holders might be greatly prejudiced. And so they might, if payments were made and not indorsed, to such previous holder, by delivery. And, by the spirit of our statute of 1S12, they would be allowed the payor, if they existed-prior to notice of such subsequent transfer. But, it is insisted, that nothing but the provisions of the statute referred to, of 1812, can authorise this
Taking this, then, to be the proper construction of the act of 1812, the plea, in this case, is good. For, the books are full of authority, that a payor of a note, when sued by an as-signee, to whom it has been assigned, after maturity, is allowed, in defence, to introduce, not merely payments, which he may have made to the payee, or previous holder; and sets-off, which he may have against him, but the broad principle is that any equity, and every defence, which would have been good for him, against the payee, is available against such assignee.
Judgment affirmed.
15 Johnson, 433-17 ib. 76.
1 John.’s Cas. 22.
5 John.'s Rep. 118.