Fennell ex rel. Fennell v. McGowan

Citations

• 58 Miss. 261

Syllabus

<p>1. Promissory Note. Collateral security. Rights of assignee. His laches. Indorser discharged.</p> <p>M. held the promissory note of F. for $500, with the promissory note of S. to F., for $1,500, as collateral security. S., knowing this fact, paid to F. the amount due on his (S.’s) note. Subsequent to this payment, M. sold F.’s note to J., agent of T., and delivered with it the collateral note of S. J. held both notes, without suing, until the note of S. had become barred bv the Statute of Limitations, and soon thereafter died. The administratrix of his estate brought an action, for the use of Ti, against M.., upon his indorsement on B.’s note. The court instructed the jury, in effect, that S.’s payment to B., knowing that his note had been hypothecated to M., was a nullity so far as the latter was concerned; that M. could have compelled S. to pay the note again, and this right passed unimpaired to his assignee, J.; and that the latter, by taking no steps to collect the note of S., and allowing it to become barred by the Statute of Limitations, became liable to M. for its value, and as that value exceeded the amount due on the note of F., it constituted a perfect defence to the action. And the court refused to charge the jury, in substance, that the facts above recited would be no defence if M. knew of the payment by S. to B. Held, that the action of the court in both instances above indicated was correct.</p> <p>2. Same. Competency of witness. Estate of decedent.</p> <p>In the case above stated, M. was a competent witness for himself as defendant, notwithstanding the fact that the result of the suit may cause the institution of an action by T. against the estate of J. for the failure of the latter to deal properly with the collateral note held by him as agent fo.r T.</p>