Citation Numbers: 19 Me. 161
Judges: Tenney
Filed Date: 4/15/1841
Status: Precedential
Modified Date: 9/24/2021
The opinion of the Court was delivered by
This action is upon a negotiable promissory note against a prior by a subsequent indorser. The proper demand and notice had been made and given, in order to ren-r der the parties to the note liable, according to mercantile usage. The writ contained also the money counts. It may well be doubted, whether the parties stand in such a relation to each other, as to entitle the plaintiff to recover of the defendant on this note as negotiable paper, even if the former were really the holder. By the’contract of Nov. 26, 1836, they mutually agreed to hold themselves accountable to each other for the one half of said note, should the promissors neglect to pay the same, when at maturity. But the plaintiff is not the holder of the note; he has not paid and taken it up ; it is now the property pi the Exchange Bank, or its assignee, and no other party can maintain^, an action thereon as it stands before us; and the plaintifffrelies upon the contract with the defendant, and contends that he is.entitled tq recover because he has paid more than one half of the nofe, and fqr thfit excess. Has more than half the note been paid ? If so, has it been paid by the plaintiff ? More than one half of the execution arising from this note, appear^ by the indorsements thereon to have been paid; this has been done by .a set-off of store No. 9, on Union wharf and flats adjoining, and by the sale of the riglff qf redeeming certain parcels of land previously set off upon .an execution against the plaintiff in favor of the Cumberlan4
But has the plaintiff paid the sums indorsed upon the execution ? It is not pretended that he has paid, otherwise than by the levies. Before the interests attached upon the original writ were seized on the execution, the plaintiff had given deeds of the whole to different individuals. He was so possessed, that the estate passed by his conveyances, liable to be taken away or diminished by the inchoate right of the attaching creditors. If their attachments had expired, the interest owned by him would have been perfect in his grantees. As the attachments were succeeded by levies, the rights of redeeming only were available to them. But in no event were the deeds to be treated as void —- the levies would not make them so,
The plaintiff must become nonsuit.