Stam v. Kerr

31 Miss. 199 | Miss. | 1856

Fisher, J.,

delivered the opinion of the court.

The plaintiff below brought this action in the Circuit Court of Yazoo county, to recover the- amount of a note made by the defendants. The defence set up was, that the note had been paid by a domestic bill of exchange, drawn by one of the defendants, in favor of the plaintiff, on one James H. Bell, and which was by him accepted. The testimony to sustain this defence consisted of a bill of discovery, by the defendants, and answer thereto by the plaintiff. It was alleged in the bill, that the bill of exchange on Bell had been given by one of the defendants, as above stated; that Bell had accepted the same; that the defendant, since the said acceptance, had a settlement with Bell, and had left the amount in his hands. The answer denies that the bill was received as an absolute payment of the note, but that it was only to be a payment in the event of its being paid on presentment to Bell.

Upon this state of case the jury found a verdict for the plaintiff below, for the amount of the note and interest; and the court refused, upon motion, to set aside the verdict, and to grant a new trial.

The bill, Mnder any view of the case, was received as a conditional payment of the note ; and the plaintiff, while he continued to be the holder, was'bound to use due diligence to collect it from the acceptor, and to give notice of its dishonor to the drawer. Story on Bills, § 109. Nor conld he return the bill and prosecute his action under the circumstances, on the note; and the court indeed, so instructed the jury; but that instruction they appear to have disregarded. The defendant was entitled to notice of the dishonor of the bill, that he might not be induced to do what was done in this instance, to wit; to leave funds in the hands of the acceptor, with which to pay the bill.

Judgment reversed, new trial granted, and cause remanded.