The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-04-25
I9l43.l
Miller, Mayhem & Co. VS.. Mayfeld anC
Travlor.

lhls action was brought by the plaintiff
in error to recover upon a promissory
note. made by the defendants inerror al
Memphis, in the State of Tennessee, and
payable in bank there, dated 27h April.
1855, and due on the LIST Janugy, after
date, TO one Roberts, as payee. Tie decla-
ration AYERS that Roberts embossed and
delivered it to Furguson and EeiI for
whose use the note was Originally made,
who then and there, before its maturity.
endorsed and delivered it to the plaintiffs
who received it bona tide, in due sourse of
trade without notice Of any payment, set
off, or other defence against the same"
The defendants pleaded first, the general
issue, and filthy, denying the tnnsfer of
the note to the plaintiffs before maturity,
and averring that they had paidthe note
to Furguson & Neill before anynotice to
them of the transfer of it to the plaintiffs,
upon which pleas issues were taken by the
plaintiffs. They also pleaded b the sec
ond, third and fourth pleas, LIST that be-
fore they had notice of the tRnsfer by
Furguson & Neill, they paid them the
note; 2nd, payment to them On the day
Of maturity Of the note, and before notice
Of transfer: 3rd, payment to them before
the maturity of the note and before notice
of its transfer. To which pleas, the
plaintiffs demurred, and the Court over
ruled the demurrer. The error assigned,
is the judgment of the Court upon this
demurrer.
1t is admitted that the noe, being exc
cuted and made payable in Tennessee, is
governed as to the rights ofthe parties by
the law of that State: and that the gener-
al rule of the commercial law, in relation
to the right of bona tide enlorsee of such
paper for value, to recover Upon it against
the maker, regardless of any defence
which the maker might lave set up as
between himself and the payee, prevails
in that State and is applicable to this
note. 1t is also admitted that the pay
ment of a note by the maker to the payee
before maturity or afterwards, and after
| the same had been transferred to a bona
| tie holder for value-would constitute no
defence to an action by such endorsee
/ against the maker. The ease as present
| ed by the demurrer then, is this, the dec.
laration AYERS an endorsement of the note
by Furguson & Neill to the plaintiffs be
fOre maturity. and that they received il
bona tide and in due course of trade with
out notice" Of any payment or other de
fence on the part of the defendants. Tt
this the defendants plead that they PAID
it to Furguson & Neill before notice of the
transfer to the plaintiffs.
1t Is too clear for any controversy, tlat
this was no defence to the action. The
title of the plaintiffs as stated in the dec
laration, was, that they had received the
note before maturity, bona tide and in dut
course OF trade, without notice % any de
Of trade" are equivalent TO an avermen
that they received it for value; for if the
took it bona tide, in due course of trade
and without notice, DC. they became tn
legal holders, whether they received
for present value paid, for pre-existin
debt or as collateral securty.-Story
Prom. Notes, 1875,
The pleas, by their silence, admit tn
endorsement and delivery as stated, bu
say that they paid the note, or the amour
of it, to Furguson & Neill before motto
of the transfer. If so, it was at their ow
peril, and it does not affect the right {
the plaintiffs to recover; for it was nc
incumbent on the plaintiffs to give motto
of the transfer to the defendants, in orde
to hold it unaffected by any transaction
with reference to it which might subs
quently take place between Furguson
Neill and the defendants. The demurr,
should, therefore, clearly have been su
tanned.
But it is insisted that nevertheless III
Judgment should be affirmed inasmuc
as the case was tried on the first and fit
pleas; and by the latter of .hese plea
that the averment of transfer Of the moi
before maturity, is denied and nut in !
sue, and the verdict was for the defen,
ants as to part of the payments elaine,
and hence, that it must be taken as o
tablished by the verdict that the transf,
was not made before maturity, or that III
payments were made before the transit
f Upon what state of evidence, or wbetl
er upon any evidence, this veprIict W,
founded 1t does not appear. 1t is not in
probable that 1t was upon the same rulin,
in relation to the law of the case held i
the learned judge upon the demurre
But be that as it may, it is plain that the,
was error to the plaintiffs prejudice
the judgment on the demurrer, and N,
entities the plaintiffs to a reversal of n
= judgment, unless it appeared positiveI
, | from the evidence adduced before tho !,
ry, that the judgment upon the whole r
cord was correct, and that no pbeiudi,
was done to the plaintiffs by the enron,
, Gus ruling on the demurrer.
> Judgment reversed and cause remain,
: ed Tor new trial' HlNnY,
: [S9S5l
: J. w. Smith ct al. vs.. Thomas W. Wi
= liams.