Losee v. Dunkin

7 Johns. 70 | N.Y. Sup. Ct. | 1810

Per Curiam.

The note was payable on demand, and

negotiated upwards of two months and a half after it was given. The first question that naturally arises is, whether this is to be considered as a note negotiated after it was due, so as to let in the defence. There is no precise time at which such a note is to be deemed dishonoured. In Furman v. Haskin, (2 Caines, 369.) a note payable on demand, and negotiated eighteen monthg after it was given, was considered as a note out of time, -so as to subject the endorsee to the matter of defence existing when it was endorsed. On the other hand, in Hendricks v. Judah, (1 Johns. Rep. 319.) the note was payable on demand, and drawn in England, and was put in suit in this state by the endorsee within a year from its date, and the court said that the maker was not entitied, in that case, to a set-off of demands against the payee, without proof of a fraudulent assignment, for it was to be presumed that the note was assigned soon after its date. The demand must be made in reasonable time, and that will depend upon the circumstances of the case, and the situation of the parties. There are no particulars peculiar to this case disclosed; and the court cannot say that it was erroneous to let in the defence; for the circumstances of this case might have been such as to justify the conclusion that the note was dishonoured when it was assigned.

Assuming this to have been the case, there is no doubt but that the defendant might give in evidence, under the general issue, payment to the original payee before the endorsement. (Brown v. Davis, 3 Term Rep. 80. Brown v. Cornish, 1 Ld. Raym. 217.) If the payment was in. full discharge of the note, it would go in bar of the suit j and if it was riot a payment in full, it will go only in mitigation of damages.

The judgment below must therefore be affirmed.

Judgment affirmed.