Patterson v. Atherton

18 F. Cas. 1323, 3 McLean 147

• Court: U.S. Circuit Court for the District of Indiana
• Decided: May 15, 1843
• Status: Published

Opinion

OPINION OF THE COURT. This action, is brought on a promissory note, given to Buckminster & Barally, at Philadelphia, for 81,073, on the 4th of March, 1836, payable in six months. The declaration alleges the note to have been assigned to the plaintiff before it became due.

The defendant pleaded, that after the execution of the note, and before he had notice of the assignment, and before the commencement of the suit, the defendant paid to the assignor the amount of the note. He also pleaded that before he had notice of the assignment, he paid to the assignor 8500, and after the assignment, and. before the commencement of the suit, he paid the residue to the plaintiff.

To these pleas the plaintiff demurred.

The demurrer must be sustained to both pleas. In the first place, it does not appear that the payment was made to the assignor, before the note was' due, or before it was assigned; and the second plea is defective, because It does not appear that the sum of 8500 alleged to have been paid to the assignor, before notice of the assignment, was in fact made before the assignment, or before the note was payable; and it does not appear that the balance due was accepted by the plaintiff, as such, in discharge of the note.

There are other issues which require a jury.