Frazier v. Gibson
| Decision Date | 30 September 1841 |
| Citation | 7 Mo. 271 |
| Parties | FRAZIER & DELLINER v. GIBSON. |
| Court | Missouri Supreme Court |
APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY.
FRISSEL, for Appellants. On the part of the appellants in this cause it is insisted, that the facts of the case bring them within the third section of the statute respecting Bonds and Notes, Rev. St. of 1835, p. 104, which provides “That the nature of the defense of the obligor or maker of a note shall not be changed by the assignment, but he may make the same defense against the bond or note in the hands of the assignee that he might have made against the maker.”
POLK, for Appellee. 1st. That there was no exception taken by appellants at the trial below to the rejection of the court, sitting as a jury, of any evidence offered by them. 2nd. The set-off claimed by the appellants could not have been available on a trial before the justice of the peace, on the evidence preserved in the bill of exceptions, and as the same causes of action, and no other, that were tried before the justice shall be tried in the Circuit Court on an appeal, neither could it have been available in the Circuit Court. St. of 1835, p. 354, § 9, and p. 371, § 16. 3rd. The court below did right in refusing appellant's motion for a new trial. See bill of exceptions.
John Gibson sued Frazier and Delliner in a justice's court, on a note executed by them to Elias Gibson, and assigned to John Gibson. A note executed by Elias Gibson to one Jameson, and by him transferred by delivery for a valuable consideration, to Frazier and Delliner, before the assignment of their note by Elias Gibson to John Gibson, was offered in evidence, and rejected by the court below.
The question is, whether the note was properly rejected? The statute concerning Bonds and Notes, section 4, says, the obligor or maker shall be allowed every just set-off and discount against the assignee or assignor before judgment. The word judgment has found its way in this place by mistake, and the word “assignment” was intended: for we cannot suppose that the law designed to give the maker of a note or bond a right to buy up claims against the assignor or assignee after the commencement of his action, and thereby subject him to the payment of costs, when at the time of the institution of his suit there was no defense against his claim. In Kentucky and Virginia where the statutes on the subject of the assignment of bonds and promissory notes similar to our own exist, it has always been...
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State ex rel. Harvey v. Sheehan
...used instead of "county," the latter may be substituted for the former. Black on Interpretation of Laws, pp. 162, 243; Frazier v. Gibson, 7 Mo. 271; St. Louis Dorr, 145 Mo. 495; St. Louis v. Christian Brothers College, 257 Mo. 541; In re Ryan's Estate, 174 Mo.App. 202; Rutter v. Carothers, ......
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Deimeke v. State Highway Commission
...Mfg. Co. v. Koeln, 278 Mo. 28, 211 S.W. 31, the word 'assessor' as used in the statute was construed to mean 'collector'; in Frazier et al. v. Gibson, 7 Mo. 271, the word 'judgment' was held to mean 'assignment'; in Hurley v. Edison, Mo., 258 S.W.2d 607, the word 'or' in the statute was int......
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State ex rel. Ewing v. Francis
...constitution. Humes v. R. R., 82 Mo. 227; Neenan v. Smith, 50 Mo. 526; Connor v. R. R., 59 Mo. 293; State v. Kinney, 44 Mo. 283; Frazier v. Gibson, 7 Mo. 271; Smith v. R. R., 61 Mo. 17; Keferstein v. Senkton, 52 Mo. 234; Spitler v. Young, 63 Mo. 43; State ex rel. v. King, 44 Mo. 283; Ind., ......
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State v. Claiborne
...Shawano County, 61 Wis. 211, 21 N.W. 77, the word "north" was read into a description in a statute, instead of "south." In Frazier & Delliner v. Gibson, 7 Mo. 271, where a statute that an obligor or maker of a note should be allowed every just set-off and discount against the assignee or as......