Small v. Jones

8 Watts 265

Opinion

The opinion of the Court was delivered by

Sergeant, J.

There is one portion of this charge in which the court below erred, and that is, in instructing the jury that there was no validity in the objection that the plaintiff could not recover, because he did not take up the note until after the commencement of this suit. If a person lend money and take a note, payable at a future day, in payment of it, and then parts with the note for a valuable consideration, he can not sue, either on the note or on the original cause of action, till he has taken up the note. If he could, the debtor might be liable to two suits; one by the holder upon the note, and the other by the creditor on the original cause of action. Where the note is outstanding in the hands of an agent of the creditor, or of one who has paid no consideration, it is sufficient to produce it at the trial, as was held in Burden v. Halton, 4 Bing. 454, (15 E. C. L. 37.) But the case is different where it has been parted with for a valuable consideration received by the creditor.

Judgment reversed.