Tucker v. Tipton

Dewey, J. Assumpsit by the assignee against tne maker oi a promissory note, not payable and negotiable at a bank in this state. Plea, the general issue. Judgment for the plaintiff. I. Naylor and J. W. Wright, for the plaintiff. H. Chase, C. Fletcher, and O. Butler, for the defendant. On the trial below, the defendant offered evidence that the note had been given without consideration, or that the consideration had failed. The testimony was rejected by the Court: the defendant excepted. This is the only error assigned. We see no ground on which the decision of the Circuit Court can be sustained. At common law, evidence of a total want or failure of consideration, in actions founded upon simple contracts, (excepting negotiated bills of exchange,) is admissible under the general issue. 2 Stark. Ev. 169, 170.—1 Chitt. Pl. 511.—Sill v. Rood, 15 Johns. 230. Since the statute of Anne, this doctrine is equally applicable to promissory notes in England. In this state, such promissory notes only as are made payable and negotiable at a chartered bank in the state, are governed by the law merchant. R. C. 1831, p. 94 Other notes are made assignable by the same statute; but the maker of them is entitled to the same defence against an assignee, which he might have had against the payee. His common law right to prove entire want or failure of consideration under the general issue, is not impaired by that statute; nor is it affected by the statute authorising special pleas alleging the want or failure of consideration, entirely or in part, in actions on specialties or other contracts. R. C. 1831, p. 405. This point was decided in the case of Jamison v. Buckner, 2 Blackf. 77. We adhere to this decision. In actions upon simple contracts not protected by the law merchant, the defendant has a right to give a want or failure of consideration in evidence under the general issue, either against the payee or assignee of the instrument sued on. Per Curiam. The judgment is reversed, and the proceedings subsequent to the issue set aside, with costs. Cause remanded, &c.