Tams v. Way

Mar 15, 1850
Reporters:
Before:
Burnside

The opinion of the court was delivered by

Burnside, J.

The note in question was near six years due, ‍​​​‌‌​​​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌​​​‌​‌​‌​‌‌‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌​​‌​‌​‌‌​‌​‌‌​​‌‌‌​​‌​​‍before the action was instituted upon it. This fact, of itself, raised a violent presumption that it was not indorsed in the due course of commercial business. This, in connection with the other facts ‍​​​‌‌​​​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌​​​‌​‌​‌​‌‌‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌​​‌​‌​‌‌​‌​‌‌​​‌‌‌​​‌​​‍stated in the affidavit of defence, tended to show that it was indorsed when over-due. Besides, the affidavit was positive that “ it was paid, and extinguished before it was assigned.” The case *223of Snyder vs. Riley, ‍​​​‌‌​​​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌​​​‌​‌​‌​‌‌‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌​​‌​‌​‌‌​‌​‌‌​​‌‌‌​​‌​​‍6th Barr 165, was deliberately considered; it decides this case. Here the evidence stated in the affidavit, in connection with the lapse of time, raised more than suspicion, and the plaintiff ought to have shown when ‍​​​‌‌​​​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌​​​‌​‌​‌​‌‌‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌​​‌​‌​‌‌​‌​‌‌​​‌‌‌​​‌​​‍and how he became the holder. Staleness of claim is always suspicious in cases of commercial credit, which is based on punctuality. The court ought not to have rendered a judgment for the plaintiff.

Judgment ‍​​​‌‌​​​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌​​​‌​‌​‌​‌‌‌​​‌​​​‌​‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌​​‌​‌​‌‌​‌​‌‌​​‌‌‌​​‌​​‍reversed and a venire do novo awarded.

The case presented on the record ought to have gone to a jury.