10 Conn. 30 | Conn. | 1833
The principle is certainly well established, and not to be denied, that the indorsee of a negotiable promissory note, indorsed after due, is considered as receiving dishonour-ed paper, and takes it subject to all the infirmities and equities, and, some cases say, defences, to which it was liable in the hands of the payee. But will the proper application of this principle justify the claim of the defendant, in the present case, is the question? 2 Stark. Ev. 292. Chitty on Bills 126. and cases referred to. Bishop v. Dexter, 2 Con. Rep. 419. Nevins v. Townsend, 6 Con. Rep. 5. There was no infirmity, no illegality nor legal nor equitable defence existing against the note in question, while it remained in the hands of Moore, the payee, growing out of the existence of the note due to Patten Sp Russell. There was no agreement between the original parties to the note before its transfer, that the defendants should pay to Patten Sp Russell their note, and have an application thereof upon the note in question. Indeed, there was no connexion, either in fact or by agreement of parties, between the note in dispute and the debt due to Patten Sp Russell. If payments had been made, either partially or in full; if there had been a failure of, or a fraud in, the consideratieBmf the note, or any illegality therein, or if there had been any agreement between the parties, affecting the note, before it was transferred to the plaintiff ; these, or other matters which might be suggested, would have created such infirmity, defence or equity, as would have attached to the note in the hands of the plaintiff. But without some infirmity in the note itself; or some matter which would
It is true, however, that in the state of New- York, and perhaps in some other states, a different practice has formerly prevailed ; though it is believed, that a different doctrine has never been deliberately established. A careful examination of the cases alluded to, in the state of New- York, will show, that the question now under consideration was not, in those cases, discussed at the bar ; and it may be, therefore, respectfully presumed, that it was not distinctly adjudged, by the court. Hendricks v. Judah, 1 Johns. Rep. 319. O’Callighan v. Sawyer, 5 Johns. Rep. 118. Bank of Niagara v. McCracken, 18 Johns. Rep. 493. Ford v. Stuart, 19 Johns. Rep. 342. In these cases, the principle seems to be assumed, that as between the original parties, a set-off is a defence to the note
The judge at the trial, therefore, was justified in refusing to charge the jury, that the sum paid by the defendant to Patten if Russell, at the time and under the circumstances before mentioned, could be allowed as a set-off against the note in suit in the hands of the plaintiff, an innocent indorsee. And for the same reasons, a set-off of the sum of 119 dollars, 50 cents, mentioned in a schedule to Moore’s receipt as being due on the 25th of June, 1829, was properly disallowed.
But the judge further instructed the jury, with respect to the two sums of 290 dollars, 58 cents, each, that if they should find the value of the defendant’s share in said co-partnership stock was ascertained, and that there was an agreement between the defendant and Moore, that the amount thereof should be applied to said note, at the times mentioned in the indenture between them, and which, it is agreed, was long before the indorsement of the note to the plaintiff, that it was their duty to make such application. In this direction also, the judge was justified, by the principles now recognized. That agreement was made when the note remained in the hands of the original holder; it was not in conflict with the rights of any one else ; it had reference to the note, and to the manner and means of its payment; and it was, in truth, an equity between the parties, which “ attached on the note itself.”
The plaintiff, on the trial, for the purpose of shewing, that the note in controversy was indorsed to him at an earlier period than the defendant supposed, claimed, that the legal presumption was, that it was transferred immediately after Moore indorsed upon it the payment of 142 dollars, 27 cents, which was on the 10th day of April, 1828. This fact furnished no other evidence on the subject, than that the note had not then been assigned to the plaintiff. It certainly could furnish none as to what time thereafter it was so assigned ; for neither the payment of that sum, nor its application upon the note, had any connexion with the subsequent act of transfer ; and no legal presumption of the nature claimed, could arise from it.
New trial not to be granted.