1 Ala. 93 | Ala. | 1840
—No reason is assigned by the Court for this decision, and none has occurred to us, which justifies it. The notes offered as off-sets, if proved to be genuine and the property of Moore, the payee, should have been received as off-sets. Though executed by Tobin and another, the statute makes the liability several as well as joint, and as Tobin could have been sued on them alone so they would be a good off-set in a suit brought by him, which, by the agreement of the parties is the aspect of this case.
Neither is it an objection that the notes offered to be set off, were payable to Moore, one of the defendants in the suit alone. The defendants were liable jointly and severally to satisfy the plaintiff’s demand, and a debt due from him to either, would be a good off-set against it. [Pitcher & Remsen v. Patrick’s admintrators, Minor’s Rep. 321.]
Some testimony was offered, the object of which, seems to have been to establish Moore’s ownership of the notes offered to be set-off. As the notes were payable to Moore, the legal inference would be, that the property in the notes remained in him until the contrary was shown. The evidence, therefore, might have been redundant, but it was not illegal or irrelevant, and should have been permitted to go to the jury.
Let the judgment be reversed and the cause remanded.