| Miss. | Oct 15, 1859
delivered the opinion of the court.
This action was brought by the plaintiffs in error to recover upon a promissory note, made by the defendants in error at Memphis, in the State of Tennessee, and payable in bank there, dated 27th April, 1855, and due on the 1st January after date, to one Roberts, as payee. The declaration avers, that Roberts indorsed and delivered it to Furguson & Neill, for whose use the note was originally made, “ who then and there before its maturity indorsed and delivered it to the plaintiffs, who received it bona fide in due course of trade, without notice of any payment, set-off, or other defence against the same.” The defendants pleaded, first, the general issue, and fifthly, denying the transfer of the note to the plaintiffs before maturity, and averring that they had paid the note to Furguson & Neill before any notice to them of the transfer of it to the plaintiffs; upon which pleas issues were taken by the plaintiffs. They also pleaded by the second, third, and fourth pleas, 1st. That before they had notice of the transfer by Furguson & Neill, they paid them the note; 2d. Payment to them on the day of maturity of the note, and before notice of transfer; 3d. Payment to them before the maturity of the note, and before notice of its transfer. To which pleas the plaintiffs demurred, and the court overruled the demurrer.
The error assigned is the judgment of the court upon this demurrer.
It is admitted that the note, being executed and made payable in Tennessee, is governed, as to the rights of the parties, by the law of that State; and that the general rule of the commercial law, in relation to the right of a bona fide indorsee of such paper for value, to recover upon it against the maker, regardless of any defence which the maker might have set up as between himself and the payee, prevails in that State, and is applicable to this note. It is also admitted, that the payment of a note by the maker to the
The case as presented by the demurrer, then, is this : the declaration avers an indorsement of the note by Furguson & Neill to the plaintiffs before maturity, and that they received it “ bona fide, and in due course of trade, without notice” of any payment or other defence on the part of the defendants. To this the defendants plead, that they.paid it to Furguson & Neill before notice of the transfer to the plaintiffs.
It is too clear for any controversy, that this was no defence to the action. The title of the plaintiffs^ as stated in the declaration, was that they had received the note before maturity, bona fide and in due course of trade, .without notiee of any defence against it. The terms “due course of trade” are equivalent to an averment that they received it for value ; for if they took it bona fide, in due course of trade, and without notice, &c., they became the legal holders, whether they received it for present value paid for a preexisting debt, or as collateral security. Story’s Prom. Notes, § 195.
The pleas, by their silence, admit the indorsement and delivery as stated, but say that they paid the note or the amount of it to Furguson & Neill before notice of the transfer. If so, it was at their own peril, and it does not affect the right of the plaintiffs to recover; for it was not incumbent on the plaintiffs to give notice of the transfer to the defendants, in order to hold it unaffected by any transactions with reference to it which might subsequently take place between Furguson k Neill and the defendants. *
The demurrer should, therefore, clearly have been sustained.
But it. is insisted that, nevertheless, the judgment should be affirmed, inasmuch as the ease was tried on the first and fifth pleas; and by the latter of these pleas, that the averment of transfer of the note before .maturity is denied and put in issue, and the verdict was for the defendants as to part of the payments claimed, and hence that it must be taken as established by the verdict, that the transfer was not made before maturity, or that the payments were made before the transfer.
Upon what state of evidence, or whether upon any evidence, this verdict was founded, it does not appear. It is not improbable that
Judgment reversed, and cause remanded for a new trial.