13 Ala. 551 | Ala. | 1848
The note sued on, so far as its vitality depends upon the original consideration, is void under our statute, (Dig. 257, § 1,) being given to be staked upon a horse race. Besides, it was returned to the makers, and thus became extinguished as to Chambliss, one of the makers, who, so far as we are informed by the bill of exceptions, was not consenting to its again being put in circulation. It was however subsequently transferred by delivery by Brewer and Holly, upon a new and valid consideration, viz: the release of the slave pledged to Barrow, and it is averred, and proved, that Brewer and Holly agreed that they
In Guild v. Eager, 17 Mass. Rep. 615, it is held, that a negotiable note once paid, cannot be afterwards transferred, where some party to the bill, or note, might be prejudiced, or troubled with a suit, who ought to be discharged. This doctrine received the approval of this court, in the case of Wallace v. The Branch Bank at Mobile, 1 Ala. R. 569. Applying the principle above stated, the plaintiff cannot recover upon the note, aside from the objection of illegality of consideration, if the note was cancelled by the payment of the money, before it was transferred to Barrow. Waiving the consideration of the objections as to the form in which the first.charge was asked, we think the point, as to whether Barrow can recover under the proof declared in the bill of exceptions, is clearly and properly presented in the second charge, and under this proof, the plaintiff having acquired the note in the manner disclosed, cannot recover. The court erred in refusing the second charge.
The judgment is reversed, and cause remanded.