Britton v. Hall

1 Hilt. 528

• Court: New York Court of Common Pleas
• Decided: January 15, 1858
• Status: Published

Opinion

Beady, J.

— The Atlantic Bank discounted the note, on which the action Avas brought, for Capwell, the payee, and the note remained in the possession of the bank until maturity and protest. The day after it was protested it was taken up, but by whom does not appear. The note was not charged by the bank to Capwell, the payee. The defendant’s offer was to show that, in the hands of the payee, there was a failure of consideration; and this offer seems to have been predicated on the assumed fact that the note belonged to the payee, though in the possession of the plaintiff. The bank, having discounted the note, was a bona fide holder before maturity and without notice of existing equities, and, on the facts proved, the presumption was that the note was transferred by the bank to the plaintiff. There is no evidence showing any transfer to the payee or re-delivery to him, or payment by him to the bank of the amount of the note. The evidence offered, therefore, was inadmissible, because there was no-jfddence impeaching the plaintiff’s title. It is well settled that, as between the original parties to a note, failure of consideration is a good defence ; and it seems to be equally well settled, that where a note is transferred after maturity, it is taken, subject only to the defences existing against it in the hands of the holder when it matured. Chalmers and others v. Lanion, 1 Campb. 383 ; Driggs v. Rockwell, 11 Wend. 505 ; Williams v. Matthews, 3 Cowen, 260 ; Andrews v. Pond, 13 Peters, 79. The defendant had a right to examine the plaintiff, and could in that mode, doubtless, have proved the manner in which and the person from whom the plaintiff oblaincd the note. He did not do go, and has failed to lay the foundation for his defence.

Judgment affirmed.