Nelson v. Edwards

Clerks, J. (dissenting.)

The court below has found that the cestuis que trust, for whose benefit the note was transferred to the plaintiffs, were trustees of the company, or were firms of each of which a trustee was a member. He has also found that the note was delivered to the plaintiffs for the said purpose, in the month of May, 1856, and that there was a loss on the policy for which it was given, as a premium note, to the amount of $171.09, which loss was adjudicated and liquidated by the company, on the 5th of March, 1856, and was then due and payable.

I think that under such circumstances the plaintiffs should not be considered bona fide holders. Being trustees of the company, the law presumes that they were aware of the claim which the defendant had' against the company, at the time it was transferred to the plaintiffs for their benefit. It is, consequently, in their hands, subject to all defenses which would have been available against the company. The fact that the note had been deposited with the American Exchange Bank as security for indebtedness due the bank, by the company, and that the former transferred it by permission of the latter, to the plaintiffs, does not alter the character of the transaction. The company had never parted with their absolute property in the nóte; the bank was merely the pledgee of it, and in transferring it to the plaintiffs, transferred the title of the company, not their own title to it. In doing so the bank merely relinquished its claim to it as a se*286curity for indebtedness, having received other security in its place or the indebtedness having been satisfied.

[New York General Term, May 4, 1863.

It is unnecessary to consider at any length the other questions presented in the case. They are all alike untenable.

The judgment should be affirmed with costs.

Judgment reversed.

Sutherland. Clerke and Mullin, Justices.]