Fogg v. Willcutt , 55 Mass. 300 ( 1848 )

By the Court.

The instruction was right; and upon the facts stated,—the plaintiff claiming as indorsee of a negotiable note not dishonored, proving himself the holder, and having a legal title,—we think that the defendant could not set up title in a third person, by way of defence. Even if the assignee could have avoided the effect of an indorsement of the note, it was a right which he might waive. The defendant could not avail himself of it. Perhaps, if the assignee had demanded payment of the note of the defendant, and given him notice not to pay it to the plaintiff, the defendant, in behalf of the assignee, might have been let in to prove that the indorsement was fraudulent, if such was the fact. But no such notice from the assignee, or demand upon himself, was shown by the defendant. It could make no difference, if the note had been actually indorsed after the commencement of the proceedings in insolvency, it being found that it was previously negotiated and delivered to the plaintiff, which made a good equitable title. Ranger v. Cary, 1 Met. 369.

Exceptions overruled.