10 Ala. 817 | Ala. | 1846
It is the settled rule in this court, that the legal effect of such a plea as is here in question, is only to controvert the fact of indorsement, and, if well pleaded, to put the plaintiff on proof of its genuineness. [Beal v. Snedicor, 8 Porter, 528; Jennings v. Cummings, 9 Ib. 309; Tarver v. Nance, 5 Ala. Rep. 712.] It is a mistake to confound this matter with the ordinary case of proving an interest in the payee, or even a third person, notwithstanding the in-dorsement. Such it was held, could be done, in Tipton v. Nance, 4 Porter, 194, and what is said in Evans v. Gordon, 8 Porter, 142, has reference to the same principle. So too in Bowen v. Snell, 9 Ala. Rep. 481, a plea alledging the interest of the note to be in a third person, against whom the defendant asserted a set off, was allowed. In Moore v. Penn, 5 Ala. Rep. 135, it was held inadmissible to show that one for whose use a suit is brought, had no interest in the note, unless it became necessary to prove some defence as against the true owner. Whether these decisions overrule that made in Byant v. Owen, 2 S. & P. 134, we will not at this time undertake to pronounce, but certainly they show that every de-fence may be asserted against the actual owner, independent of the mere name in which the suit is commenced. With this explanation of what has hitherto been decided, the pro
