Little v. Dunlap

• Decision Date: 31 December 1852
• Citation: 44 N.C. 40
• Court: North Carolina Supreme Court
• Parties: G. W LITTLE v. B. J. DUNLAP et al., EX'RS OF YOUNG H. ALLEN.

44 N.C. 40

G. W LITTLE

v.B. J. DUNLAP et al., EX'RS OF YOUNG H. ALLEN.

Supreme Court of North Carolina.

December Term, 1852.

If a note be transferred before it is due, the endorsee will hold it freed from any dealings between the maker and payee, had before that time.

If transferred after it is due and dishonored, the maker is entitled to the same defences against the endorsee, as he would have had against the payee.

(The case of Elliott v. Smitherman, 2 Dev. & Bat. 338, cited and approved.)

THIS was an action of DEBT on a promissory note for $150, executed by the defendant's testator on the 11th July, 1849, payable to one Threadgill on demand, and by him endorsed to the plaintiff on the 17th day of June, 1851, who demanded payment thereof on the 25th of the same month. The pleas were nil debet--set-off. Upon the trial at Anson, on the last Circuit, before his Honor Judge CALDWELL, the defendants offered setsoff against said note, arising after its execution, and before it had been endorsed to the plaintiff, insisting that the said note, when endorsed, was dishonored. Of this opinion was his Honor, and allowed evidence of said sets-off to go to the jury. It also appeared that the payee, Threadgill, and the testator of defendants, lived in a mile or two of each other. The jury returned a verdict allowing said sets-off; and the Court having rendered judgment accordingly, the plaintiff appealed.

Strange, for the plaintiff .

Winston, Sen., for the defendants .

NASH, C. J.

The action is brought on a promissory note. It was executed by defendants' testator, on the 11th July, 1849, and payable on demand. The payee endorsed it to the plaintiff on the 17th day of June, 1851, and demand was made on the 25th of the same month. The note was dishonored at the time of its endorsement, and subject, in the hands of the endorsee, to all the defences it would have been, if still held by the endorser. There is no precise time established in law, within which a note payable on demand must be presented for payment, so as to protect an endorsee against the equities which the maker may have upon the payee or endorser. If transferred before dishonored, the endorsee will hold it freed from any dealings between the maker and payee had before that time; if after, he holds it as the payee did, and subject to all his liabilities upon it. When a note is made payable on demand, or when no time of payment is expressed, it is payable instantly on demand, without...