Bacon v. Smith

The judgment of the court was pronounced by King,-- J. The defendants are sued as the maker and endorser of two pro-' missory notes, and plead in defence that the plaintiffs are not the owners, and-have never had the actual possession, of the notes sued-on ; that-the possession-of the plaintiffs was only constructive, as the assignees of the Bank of the United-States, the actual possession being in W. kk. Frazier ;■ that the notes were attached at the suit of the United States, as belonging to the Bank of the United-States, and thereby taken from-the control of-the plaintiffs; and that by no subsequent proceeding have the petitioners been re-invested with authority to-enforce their payment.- There was a judgment of non-suit rendered in the-court-below, and the plaintiffs have appealed. The plaintiffs are in-the actual possession-of the notes,-which were produced-on the trial-; and-it has been repeatedly held that the holder of a negotiable instrument, endorsed in blank, as is the case-with those sued on, may maintain an-action in his own name for its recovery. There is no allegation that the transfer to the plaintiffs was not- made in good faith, nor that the- defendants have' equitable defences to oppose to the true owners,-of which they have been ills-gaily deprived. The defendants show-that the notes were regularly assigned-to the plaintiffs as trustees, by the Bank of-the United States, and that-they have-been notified to pay them to no other person than to the plaintiffs, or their attorney, Frazier.- It was not-necessary that that the plaintiffs should have averred that they held-the notes as trustees, if such be still the-nature of their-tenure.- Their possession is sufficient to authorise the action.- It- appears that-the defendant, Smith, offered to pay the amountof the notes to-Frazier, which-the latter refused to-reoeive, stating that the notes had been attached at the suit-of the United States against the bank. It is urged that the plaintiffs have not shown, that the notes havebeen liberated from the attachment; and that-this offer-to -pay- relieves the defendants from the payment of interest. It was not incumbent on the plaintiffs to show- that the attachment had been discharged, nor that-their capacity to receive had been restored, but it devolved upon the defendants-to prove that the proceeding was still in force, if they desired to avail themselves of that fact in defence. The announcement by- the defendant Smith, of his readiness to pay the notes, was not a legal tender, and had not the effect of-arresting interest. C. P. arts. 407, 415. 6 La. 17. It is therefore ordered that the judgment of the District Court be reversed. , It is further ordered, that the plaintiffs recover of the defendants, in solido, the' sum' of five hundred' and twenty-four dollars and eighty-eight dents, with ten per centyearly interest thereon, from the 14th day of November, 1842, until-paid; and the further sum of five hundred and sixty-six dollars and five cents, with like yearly interest, from the 14th day of November, 1843, until paid, with nine dollars and sixty cents, the costs of protest. It is further ordered, that the' defendants pay the costs of both courts.