Southard v. Porter , 43 N.H. 379 ( 1861 )

Bartlett, J.

There is no evidence that when the note was sold to the plaintiff indorsement was omitted by mistake, accident, or fraud; Story on Notes, sec. 120; Story on Bills, sec. 201; Bailey on Bills (Am. Ed. 1826), 80, and note; or, that there was any agreement or understanding that it should be indorsed. The transfer, then, was not in the usual manner by indorsement, and was not in the usual course of business. Davis v. Lane, 8 N. H. 226; Boody v. Bartlett, 42 N. H. 558; Crosby v. Grant, 36 N. H. 279. When the indorsement was made the note was overdue and the plaintiff’ had been notified of the defense. In Baker v. Arnold, 3 Caines 284, there is a dictum of Livingston, J., that the indorsement, whenever made, should be regarded as relating back to the delivery of the note; but such is not the doctrine of the case. In Ranger v. Carey, 1 Met. 374, a note payable to A or order, had been sold in good faith and delivered to the plaintiff before maturity, and upon good consideration, but it was not indorsed till after it was overdue; and the court refused to allow the defendants to set off an indebtedness of A to themselves existing at the delivery of the note to the plaintiff’, although it seems that then such a set-off was allowable in Massachusetts, as against the indorser of a dishonored note. The court, however, expressly restricted their decision to that precise state of facts, and the case seems rather a limitation of the doctrine of Sargent v. Southgate, 5 Pick. 312, than the establishment of any such general principle of relation as the plaintiff here claims. That case can hardly be regarded as an authority for the plaintiff’s position; but if it could, we see nothing in it that should induce us to depart from the principles of our own decisions. According to the provisions of the case, there must be

A nonsuit.