Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-10-01
OFFICIAL.

Opinions of the Supreme Court of Tonnes.
see, delivered at jackson, at April Term
| 1858.
THEODORE H. YETTERIux vs. HOWELL Turner HUMPHREYS
Ga the 10th March, 1885, defendants, who are
druggists in Brownsville, Tennessee, executed to
s. Brown & Co., Philadelphia, their promissory note
for S2085O, due at six months On the 18th of May,
1856, Brown s. Co., the payees, assigned said mole
10 the plaintiff collateral security for the payment
of pre-existiDg debt, due from them to the plain
! tiff. At the time Of the assignment the plaintiff
! gave Brown s. Co. credit for the amount of this
/ note on the debt they owed him; nor has he yet
! given any, but the agreement was that the "Dett
| proceeds of the note" should be credited on the
| debt of the plaintiff against Brown & Co.
The plaintiff gave notice to the defendants, the
makers of the note, of the assignment to him and
on the 3Oth July, 1885, before the maturity of the
note the same was paid by the defendants TO Brown
& Co, the payees. And upon defendants refusing
to pay him the amount of the note at maturity the
plaintiff instituted this suit for the collection of the
came.
On the trial below, the Court charged, "that if
the jury should find that the note has bsen transfer
red to the plaintiff by T. S. Brown s. Co. as collat.
eral security then, in order to entite the plaintiff
to recover be should prove that he had given notice
to the defendants Of the transfer and assignment If
the note to him by 7. S. Brown & Co, previous TO
Both July, 1856" The plaintiffs attorney asked
the Court to charge "hst if they find that the note
had been assigned to plaintiff on the 10Th May 1856
and previous to the payment made by defendant to
Brown & Co., they should fnd for the plaintiff al>
though the note may have been assigned to him 10
secure the payment of pre-existing debt" This
the Court refused to charge, but charged as above
The jury returned q verdio4 for the defendants, a
new trial was refused, and the plaintiff appealed.
It is now insis ed that this charge is erroneous,
and that the Court should have charged requested
The argument is, that if party pay a negotiable
paper this is before maturity, and fails to take
up, he does it at his peril and if it is afterwards
assigned before maturity the assignee has right TO
enforce its repayment.
This doctrine, thus broadly, stated is not main
ainsble. It is true that if party pay negotiable
paper before due, and fail to take il up, and it is
afterwards and before maturity, negotiated IN due
course Of trade, the assignee being innocent hold
er, for valuable consideration, would be entitled
to enforce its payment But 1t is equally true that
if 1t is taken in payment o. collateral security
for GpTeeIsti1g is not negotiated in due
of trade and the holder would stand in nc better sit
ustOn than the psyee, and would be subject to all |
defenses which might be made against it, in the |
hands Of the psyee. Upon this principle, the pay
ment OF the note, by the Defendants TO the Payee,
is "a available as if the psyees the plaintiffs
in the suit
If the plaintiff had given the defendants notice
hat he the holder of the note, before they made
he payment and after such notice, they had paid it
% the pages, this would have been payment in
heir own wrong and would not avail them as a de-
ense in suit, by the assignee. But if, in the alb
ence Of such notice. they have, in good faith, part
ID with their money, to the payees in satisfaction
# this note, though before its maturity, it would be
MUST to compel them to pay it again, in favor of
srty who had parted with nothing for it.
This note assigned to the plaintiff to collect
Or the psyees, and when collected to credit them
nth the 'net proceeds" on debt he held against
hem But should he never collect it, he will still
old his debt against Brown & Co, and will be in
0 worse situation than he was before he took the
5slgDment ghOuld he |
eendants, it would be compelling them to nav that
mount to him on his debt against Brown Co., to
HON they have already, without fault, paid the =
oney. Such result could be supported upon
either reason nor authority. See Van WICK vs..
orwell, ct al. Humph. R 1872, and authorities I
ere referred to- where the doctrine is very fully
seussed. =.
There is no error in the judgment and is affirm
/. HARRIS.
Test NJ. D. Wz1oH, CLERK. 4