Mercien v. Cotton

34 Miss. 64

• Court: Mississippi Supreme Court
• Decided: October 15, 1857
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

This was an action upon a promissory note, made by the defendant in error, payable to Temperance Skinner, or bearer, and by her transferred, by delivery, to D. Williams & Co., who assigned it, for a valuable consideration, to the plaintiffs in error. The note was dated, May the 12th, 1845, and payable on the 1st of January, 1847. The assignment, from Williams & Co., to plaintiffs in error, bears date the 15th of July, 1845.

The defence relied on, was an entire failure of consideration in the note. The plaintiffs replied, in the answer, setting up this de-fence, and the defendant demurred to the replication. The demurrer was sustained, and the plaintiffs declining to plead over, judgment final was entered for tbe defendants; to recover which, this writ of error is prosecuted.

The note sued on in this case, was payable to bearer, and was assigned for a valuable consideration before it became due. The principle, therefore, recognized, by this court, in Craig v. The City of Vicksburg, 31 Miss. Rep. 243, is decisive of this case. The alleged want or failure of consideration was no defence to the action. The demurrer, therefore, should have been applied to the defendant’s answer, and the proper judgment pronounced.

The judgment is reversed, and judgment of respondeat ouster ordered to be entered in the court below.