Hamlin Bank & Trust Co. v. W. H. Dollar Manufacturing Co. ( 1923 )

Katzenbach, J.

The above suit is founded upon a promissory note made by the defendant, W. H. Dollar Manufacturing Companjr, to the order of the Safety Sled Company, and endorsed by the payee to the plaintiff. The defendant has filed an answer setting up that the plaintiff is not a holder of the note sued on in due course and did not take the same in good faith and for value, and has also, by way of counter-claim, set up that it holds the note of the Safety Sled Company, drawn to its order, which is a proper set off to the note upon which the present action is brought. The plaintiff moves to strike out this counter-claim on the ground that in an action by an endorsee against a maker of a promissory note the fact that the endorser was at the time of the making 'of the endorsement indebted to the plaintiff, constitutes no defense. In the case of Cumberland Bank v. Hann, 18 N. J. L. 222, this court held that in an action npon a promissory note, endorsed to the plaintiff after maturity, bona fide and for a valuable consideration, it is no defense for the defendant, and therefore not competent for him to prove, the fact that the endorser at the time of making the endorsement was indebted to the defendant. This case was decided at the May term, 1841, of the Supreme Court. In 1878 the Court of Errors and Appeals, in the case of Price v. Keen, 40 Id. 332, held that the Cumberland Bank case had been followed for nearly forty years; that it was satisfactory to that éourfc; and affirmed a judgment of the Supreme Court on the authority of this case.

It is unnecessary to cite other eases in this state to the same effect. They are uniform in maintaining the principle laid down in the Cumberland Bank case. The counter-claim will be struck out. An- order to this effect may be presented to me.