Bell v. Horton

1 Ala. 413 | Ala. | 1840

GOLDTHWAITE, J.

— If suit had been instituted by Horton, in his own name, to recover from Jones the several demands offered as a set-off, it would have been necessary to show that they had been endorsed by the respective payees; or that having been transferred to Horton, a promise had afterwards been made by Jones, to pay him the several amounts. The same requisites seem to be necessary to constitute them a set-off under the statute. French v Garner, (7 Porter 549:) Kennedy v. Manship, (Supra) Crawford v. the executors of Simonton (7 Porter 110.)

In the case of Stocking v. Toulmin, (3 S. & P. 35,) it was held that a demand against an intermediate endorser of the note sued on, was not within the statutes of set-off.

These decisions do not permit us to consider the question as open; and however just i^ may seem, that a set-off, like the one offered in the present case, should be allowed, it is clear that it cannot be done under the statute, without introducing a construction adverse to the principle decided in Stocking v. Toulmin, and would be equivalent to legislation.

The judgment is reversed and the cause remanded.