Chamberlain v. Gorham

20 Johns. 144

• Court: New York Supreme Court
• Decided: August 15, 1822
• Status: Published

Opinion

Per Curiam,

There is no doubt that the party m interest may be allowed to testify to the Court, upon the preliminary point, as to the loss of the note or instrument ' in order to introduce to the jury parol evidence of its contents. (Jackson v. Frier, 16 Johns. Rep. 193.)

The defence set up by the defendant, if proved, would, undoubtedly, be valid, notwithstanding the assignment of the note, and notice of such assignment; for the note not being negotiable, the assignee must take it subject to all the equity existing at the time of the assignment and notice ; and here, the equity or ground of defence was coeval with the date of the note. But the notice accompanying the plea was defective, for the reasons stated in the Court below i and the judgment must, therefore, be affirmed.

Judgment affirmed»