Brown v. Union Bank

Mississippi Supreme Court

Brown v. Union Bank

62 Miss. 754

DecidedApril 15, 1885

StatusPublished

This text of 62 Miss. 754 (Brown v. Union Bank) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Union Bank, 62 Miss. 754 (Mich. 1885).

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Opinion

Arnold, J.,

delivered the opinion of the court.

The demurrer should have been overruled. The plea brought the defense within the terms of the statute, which provides that “ all promissory notes, and all other writings for the payment of money or other thing, may be assigned by indorsement, whether the same be payable to order or assigns or not, and the assignee or indorsee may maintain such action • thereon in his own name as the assignor or indorser could have maintained; and in all actions on any such assigned promissory note, bill of exchange, or other writing for the payment of money or other thing, the defendant shall be allowed the benefit, of all want of lawful consideration, failure of consideration, payments, discounts, and set-offs made, had, or possessed against the same previous to notice of assignment in the same manner as though" the suit had been brought by the payee; and the assignee or indorsee of any such instrument may maintain an action against the person or persons who may have indorsed the same, as in case of inland bills of exchange.” Code, § 1124.

A construction of this statue, which excludes from its operation all instruments which were before negotiable, would give but partial effect to its provisions. “ All promissory notes and all other writings for the payment of money or other thing, whether the same be payable to order or assigns or not,” includes negotiable as well as bon-negotiable instruments. No distinction is made by the statute between the two. Each is embraced in its terms, and one as much so as the other. If previously negotiable, such instrument became at once, under the statute, subject to the equities therein specified. If not previously negotiable or assignable by indorsement they are invested with that quality by the statute, •so that the assignee or indorsee may sue thereon in his own name, subject to the equities -aforesaid.

The assignee or indorsee of such paper, whether immediate or remote, and whether he becomes such before or after maturity, takes [757]*757the same subject to such of said defenses as may exist between the original promisor and payee prior to notice to the former ©f the assignment. Etheridge v. Gallagher, 55 Miss. 458.

An instrument of the class referred to in the statute, when made payable to bearer, is an express contract by the promisor t© pay the amount specified to whoever- may become the bond fide holder thereof, and for this reason is not affeeted by the provisions of the statute. Stokes v. Winslow, 31 Miss. 518 ; Winstead v. Davis, 40 Miss. 785.

Reversed.

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Arnold, J.,

delivered the opinion of the court.

The demurrer should have been overruled. The plea brought the defense within the terms of the statute, which provides that “ all promissory notes, and all other writings for the payment of money or other thing, may be assigned by indorsement, whether the same be payable to order or assigns or not, and the assignee or indorsee may maintain such action • thereon in his own name as the assignor or indorser could have maintained; and in all actions on any such assigned promissory note, bill of exchange, or other writing for the payment of money or other thing, the defendant shall be allowed the benefit, of all want of lawful consideration, failure of consideration, payments, discounts, and set-offs made, had, or possessed against the same previous to notice of assignment in the same manner as though" the suit had been brought by the payee; and the assignee or indorsee of any such instrument may maintain an action against the person or persons who may have indorsed the same, as in case of inland bills of exchange.” Code, § 1124.

A construction of this statue, which excludes from its operation all instruments which were before negotiable, would give but partial effect to its provisions. “ All promissory notes and all other writings for the payment of money or other thing, whether the same be payable to order or assigns or not,” includes negotiable as well as bon-negotiable instruments. No distinction is made by the statute between the two. Each is embraced in its terms, and one as much so as the other. If previously negotiable, such instrument became at once, under the statute, subject to the equities therein specified. If not previously negotiable or assignable by indorsement they are invested with that quality by the statute, •so that the assignee or indorsee may sue thereon in his own name, subject to the equities -aforesaid.

The assignee or indorsee of such paper, whether immediate or remote, and whether he becomes such before or after maturity, takes [757]*757the same subject to such of said defenses as may exist between the original promisor and payee prior to notice to the former ©f the assignment. Etheridge v. Gallagher, 55 Miss. 458.

An instrument of the class referred to in the statute, when made payable to bearer, is an express contract by the promisor t© pay the amount specified to whoever- may become the bond fide holder thereof, and for this reason is not affeeted by the provisions of the statute. Stokes v. Winslow, 31 Miss. 518 ; Winstead v. Davis, 40 Miss. 785.

Reversed.

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Bluebook (online)

62 Miss. 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-union-bank-miss-1885.

Opinion

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