Loomis v. Pulver — 9 Johns. 244

Majority

p. 244

Loomis against Pulver.

ALBANY

August, 1812.

Headnote

A. in 1808,gaveb!apro’. inissoi'y note payable on demand, which uinsfeiS'to is'io^su'ed"a on the note tice and recomount^tiio’" ^óusiydsettied and paid it to Md, that subject eto°an equity between A. and B., but thatA. ought to have men?to B^as the suit'wt h-vbig8 done ^ so, he .eonld not make the recovery a ground of an action, for money had and received, against B.

IN ERROR, on certiorari, from a justice’s court. Pulver sued Loomis before the justice, for money had and received, ike, Pulver offered to prove that, m 1808, he gave Loomis two promissory notes, payable on demand, which he transferred to S'. L., w*10’ ak°ut a w6ek before the trial, in 1810, sued the plaintiff, and recovered the amount of the notes; and that previous to the trans-for to S. L., Pulver had paid the amount of the notes to Loomis» This evidence was objected to, but the justice overruled the objec^on* The plaintiff then proved that the defendant declared that he had settled all accounts with the plaintiff and that he owed him 4 cents. It did not appear, however, that any thing was said about the notes, at the time of the settlement,

On this evidence, the jury found a verdict for the plaintiff, for ° ' A 15 dollars, on which the justice gave judgment,

Several objections were stated to this recovery, but the principal one is, that the plaintiff ought to have set up this payment as a defence against the notes. As the notes were pay»

p. 245

~b1e on demand, and not negotiated until two years after the date of them, the person to whom they were transferred took them subject to all equity, and to the previous payment, or accounts, against the defendant. There is no doubt that this formed a good defence against the notes; and if the plaintiff' neglected to make this defence~ he is precluded from making that recovery a ground of action against the defendaiit. This was the acknowledged doc~ trine, in the case of Le Guem v. Gouvermeur & Kemble. (1 .Johns. Cas. 436.) On this ground, the judgment was erroneous, and must be reversed.

Judgment reversed.