Swift v. Tyson

*23 Mr. Justice Catron

said:

Upon the. point of difference between the judges below,. I concur, that the extinguishment of a debt, and the giving a post consideration, such as the record presents, will protect the purchaser and assignee of a negotiable note from the infirmity affecting the instrument before it wus negotiated. But I am unwilling to sanction the introduction into the opinion of this Court, a doctrine aside from the case made by the record, or argued by the counsel, assuming to maintain, that a negotiable note or bill pledged as collateral Security for a previous debt, is taken by the creditor in the due course of trade; and that he stands on the foot of him who purchases in the market for money, or takes the instrument in extinguishment of a previous debt. State Courts of high authority on commercial questions' have held otherwise; and that they will yield to a mere expression of opinion of this Court, or change their course of decision in conformity to the recent English cases referred to in the principal opinion, is improbable : whereas, if the question was permitted to rest until it fairly arose, the decision of it either 'way by this Court, probably, would, and I think ought to settle it. As such a result is not to be 'expected from the opinion-in this cause, I am unwilling to embarrass myself with so much of it as treats of negotiable instruments taken as- a pledge. I never heard this question spoken of as belonging to the case, until-the principal opinion was presented last evening; and therefore I am not prepared to give' any opinion, even was it called-for by the record.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the southern district, of New York, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is .the opinion of this Court, that the defendant was not, under-the facts stated, entitled to the same defence to the action as if the suit was between the original parties to the bill; that is to say, the said Norton, or the said Norton and Keith and the defendant: and that the evidence *24 offered.in defence and objected to, was not admissible as against the plaintiff in this action. Whereupon it is now here ordered and adjudged by this Court, that an answer .in the negative be certified to the said Circuit Court.