Beal v. Wainwright, Shields & Co., 6 Ala. 156

Beal v. Wainwright, Shields & Co.

6 Ala. 156 | Ala. | 1844

COLLIER, C. J.

If the note declared on be negotiable, according to the laws of the State in which it was made, even conceding as argued for the plaintiffs in error, that the lex fori must determine whether a set-off is admissible against an indorsee, does it follow that the set-off was improperly rejected by the circuit court? The negotiability of the note in New-York, has not been questioned, but seems to have been conceded at the argu-*159mentupon the principles of commercial law, which, in the absence of opposing legislation, must prevail there. Our statute of 1828, enacts, that the remedy on promissory notes, payable in bank, shall be governed by the rules of the law merchant, &c. — • [Clay’s Dig. 383, §11.] This being the case, would not both the lex loci contractus, and the lex fori, concur in the rejection of a set-off against the note in question, in the hands of a bona fide indorsee, who became such previous to its maturity? The instruction which the defendants prayed the court to give the jury, was, not as to the time when the note was transferred, but it assumed, that it was subject to the general law of set-off, and to defeat the defence, it was necessary for the plaintiff to have informed the defendants, that they had became the indorsees of their paper; and this, before the defendants acquired the notes which they adduced. The court instructed the jury, that the note declared on, was subject to the law merchant, and if transferred before its maturity, the defendants could not avail themselves of their sets-off.

We need not inquire, whether the law of set-off, pertains to the remedy, and is to be administered according to the regulations existing upon the subject in the country where the suit is brought, or whether the act of 1828, applies only to notes payable in our own banks. Upon the assumption, that our law is to regulate the right of set-off, that statute, as it is the only one applicable, must determine the negotiable character of the note; and then commercial law declares, that in such case, there can be no set-off, unless the paper was indorsed subsequent to its maturity. In the refusal to charge, a different principle is not recognized, while in the instruction given, the law is laid down as we have stated it.

This view is decisive of the case, whether it be considered with reference to the laws of New-York, or of this State, and shows, that according to either, the bill of exceptions does not discover an available error. We are, therefore, relieved from a more particular examination of the points made by the arguments of counsel, and have only to add, that the judgment of the circuit court is affirmed.