p. 70Headnote
Where a note payable on demand, was negotiated two months and a half after ~ts date; in a suit by the holder figalest the maker, he was allowed to show payment to the original pavee, before the transfer of the note to the plaintiffi There is no precise time at `which such a Bote is to be deemed dishofloured; bet it must depend on the circumstances of the case, and the situation of the parties.IN error, froñi the court of conirnon pleas of buchc~j county.
The suit below was an action of assump~iton a pro.~ missory note given by the defendant to David .Z~Thwton, payable, on demand, to Newton, or bearer, for the sum of 55 dollars, with interest, and dated the 16th day of ~anuar9, 1805. An assignment in writing from Newton to the plaintiff, dated April 3, 1805, was endorsed on the note. The declaration was in the usual form~ on the note. Plea, non assurnp.~it.
The defendant proved, that shortly after the date of the assignment he paid Newtcn 50 dollafs, which he agreed to credit on the. note.
The plaintiff's counsel contended, that this evidence was inadmissible, on the issue of non. assumpsit; but the court ruled, that it should be admitted; and the jury found a verdict for the plaintiff for six dollars and seventy-five cents; and judgment was given for the plaintiff for that sum, and for the defendant, for the costs.
The case was submitted to the court, Yjithou.t argument.
The note was payable on demand, and
negotiated upwards of two months and a half after it was given. The first question that naturally arises is, whether this is to be considered as a note negotiated after it was due, so as to let in the defence. There is no precise time at which such a note is to be deemed dishonoured. In Furman v. Haskin, (2 Caines, 369.) a note payable on demand, and negotiated eighteen monthg after it was given, was considered as a note out of time, -so as to subject the endorsee to the matter of defence
p. 71existing when it was endorsed. On the other hand, in
Hendricks v. Judah, ( 1
Johns. Rep. 319 .) the note was payable on demand, and drawn in England, and was put in suit in this state by the endorsee within a year from its date, and the court said that the maker was not entitied, in that case, to a set-off of demands against the payee, without proof of a fraudulent assignment, for it was to be presumed that the note was assigned soon after its date. The demand must be made in reasonable time, and that will depend upon the circumstances of the case, and the situation of the parties. There are no particulars peculiar to this case disclosed; and the court cannot say that it was erroneous to let in the defence; for the circumstances of this case might have been such as to justify the conclusion that the note was dishonoured when it was assigned.
Assuming this to have been the case, there is no doubt but that the defendant might give in evidence, under the general issue, payment to the original payee before the endorsement. (Brown v. Davis, 3 Term Rep. 80. Brown v. Cornish, 1 Ld. Raym. 217.) If the payment was in. full discharge of the note, it would go in bar of the suit j and if it was riot a payment in full, it will go only in mitigation of damages.
The judgment below must therefore be affirmed.
Judgment affirmed.