Burdick v. Green

15 Johns. 247

• Court: New York Supreme Court
• Decided: May 15, 1818
• Status: Published

Opinion

Spencer J.

delivered the opinion of the court. The point is, whether an action of assumpsit can be maintained on the original cause of action, under the circumstances set forth in the 6th plea, with the additional fact, that the promissory note duly endorsed to Ketchum had been re-assigned to the plaintiff, under the hand and seal of Ketchum, by a distinct instrument.

There can be no doubt that the legal title in the note is in Ketchum, for the plea states the endorsement of the note under the hand of the plaintiff to J. Ketchum, or order, for value received; the transfer was thus complete, and nothing but the cancelling this endorsement, or Ketchurn’s endorsing it again, would devest him of the legal title. A note endorsed in blank may, or may not, be filled up, at the election of the endorser, but an endorsement in full, transfers the interest of the payee to the person named in the endorsement. (Chitty on Bills, 116, 117, 118.)

In Holmes and Drake v. D’Camp, (1 Johns. Rep. 35.) it was held, that though technically speaking, a negotiable note does not extinguish an antecedent debt which formed its consideration, it was an extinguishment sub modo; and, as I understand that case, we adopted this rule, that when it appeared that a negotiable note had been given for a prior debt, that we would not suffer the plaintiff to recover on the original consideration, unless he showed the note to have been lost, or produced and cancelled .it at the trial.

The plea in this case, therefore, is defective, as a bar to an action on the original consideration; for we have seen that the mere giving a negotiable note, or its endorsement to a third person, does not extinguish the original cause of .action, provided the payee in the note can show it to be lost, or can produce it to be cancelled; and non constat, that it cannot he done in this case.

Judgment for the plaintiffi