Chilton v. Comstock

GOLDTHWAITE, J. It is evident that the account transferred by Chilton to McCampbeil was not taken as an absolute payment, and in extinguishment of the note. The utmost effect of the agreement is, that the note should be taken as a conditional payment. The rule in such a case is, that the original liability is not impaired in any respect, and the plaintiff may sue on it without any return or offer to return the substituted paper. [Clark v. Young, 1 Cranch 181; Abercrombie v. Mosely, 9 Porter, 145; Trotter v. Crockett, 2 Porter, 413.] It may be conceded that the same rules will apply to any defence to this action, which could be urged if McCampbeil, the payee of the note, was the plaintiff. In that event the fact of receiving the money for the account, or using it so as to make it available, according to the contract, if this was effected after the institution of the suit, could only be shown in de-fence under a plea puis darrien continuance. It is doubtless true, that under our statute, ordinary promissory notes are not negotiable in such a manner as to discharge them from any latent equity, even in the hands of a. bona fide [60] holder, without notice. [Smith v. Pettus, 1 S. and P. 107. The only, effect of the statute is to authorize the assignee to maintain a suit in his own name, and to protect- him against any paymeut, &c. made to the assignor after notice of the assignment. We are not prepared to say that the defendant in this case is without his remedy, if he is in a situation to sustain injury in consequence of the transfer of the note to the present plaintiff; but it is clear that the defence insisted on cannot avail him, because it would not have been available under the same state of pleadings against the payee of the note. Let the judgment be affirmed.