
    
      HERRIMAN vs. MULHOLLAN.
    
    Appeal from the court of the sixth district.
    The vendee cannot withhold the price, on the ground that part of the land sold, belonged to a minor, and the legal formalities were not complied with.
   Porter, J.

delivered the opinion of the court. The plaintiff, as endorsee, sues on two promissory notes, executed by the defendant, and made payable to a certain Susanna Spencer.

West’n District

Sept. 1823.

The endorsee of a note, after maturity, must allow as a set off, existing claims against his endorser.

The defendant pleads want of consideration and payment.

The evidence shews that one of these notes was endorsed to, and received by the plaintiff, after it became due, consequently he took it liable to all the equities to which it would have been subject in the hands of the original parties, because the very circumstance of its not being paid at the time promised, was sufficient to put him on his guard, and suggest to him the necessity of making enquiries.

The want of consideration pleaded, in the answer, has not been sustained by the proof. No evidence is given that the defendant has been troubled in his possession, nor evicted of the land he purchased, nor does the fact, that part of the property belonged to a minor, and was sold without the solemnities of law, furnish a good ground for withholding payment. This question has already been settled in the case of Melancton's heirs vs. Duhamel, 10 Martin.

It has been proved that the maker of these notes, at the time of the transfer, had claims against the payee, for which he thinks he is entitled to a credit against the plaintiff, who, as to one of the notes, stands in the same situation as the payee would.

These claims, according to the evidence appear to be as follows:

The rent of the land, (80 acres,) at 5 dollars per acre, - - - - - - - - - $400

Rent of a house for one year, at 12 dollars per month, - - - - - - - - - 144

Judgment recovered at the suit of La Tiernan, against the defendant as garnishee, with interest, - - - - - - - 120

Amount, - - - - - - - - - $664

From which must be deducted the hire of negroes. The witness says three or four were hired; that they were worth 12 dollars a month, and that he is certain two of them remained for a year. Allowing three for that time it appears to us that the just medium will make a sum of four hundred and thirty-two dollars, which deducted from six hundred and sixty-four, will leave a balance of two hundred and thirty-two dollars, for which the defendant is entitled to a credit.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, reversed and avoided: and it is further ordered, adjudged and decreed, that the plaintiff do recover of the defendant the sum of eleven hundred and sixty eight dollars, with interest on 468 dollars of that sum, at ten per cent, from the 31st of May, 1821, until paid, and interest on the remainder, that is to say, on 700 dollars, from the 31st of May, 1822, at ten per cent, and costs in the court below; and that the appellees pay the costs in this court.

Johnston for the plaintiff, Thomas for the defendant.  