Brewster v. McCardell

8 Wend. 478

• Court: New York Supreme Court
• Decided: January 15, 1832
• Status: Published

Opinion

By the Court, Sutherland, J.

The judge erred in chargi ng the jury that the circumstance of the note not having been negotiated to the plaintiff before the day when it bore date was a strong circumstance of suspicion sufficient to put him upon inquiry, and that he therefore took it subject to any defence which might be made as against the original payee.

The note was actually made and delivered to the payee in October, 1828, although it it bore date in May, 1829, and was payable 90 days after date. It was transferred to the plaintiff for a valuable consideration in February, 1829, six monthsbefore it became due. The date of a note is in no respect material, except for the purpose of determining whenit was payable. There is no legal objection, either to ante-dating or post-dating a note, and I am not prepared to say that either is, in itself, and disconnected from other circumstances, a legal ground of suspicion, so as to put the endorsee upon inquiry, and subject him to all the equities existing between the original parties. 7 Cowen, 337. Chitty on Bills, 77. The court of king’s bench, in Pasmore v. North, 13 East, 516, held that a note which was post-dated, and which was transferred to the plaintiff before the day when it bore date, could not be questioned or impeached by the maker. That case is not distinguishable from this, and I think was rightly decided upon the well established principles applicable to negotiable paper.

A new trial must therefore be granted, the costs to abide the event