Frazier v. Gibson

7 Mo. 271 | Mo. | 1841

Opinion of the Court by

Scott, Judge.

John Gibson sued Frazier and Delliner in a justice’s court on a note executed by them to Elias Gibson, and assigned to John Gibson. Á note executed by Elias Gibson to one Ja-meson,andby him transferred by delivery for a valuable consideration, to Frazier and Delliner, before the assignment of their note by Elias Gibson to John Gibson, was offered in evidence, and rejected by the court below.

The question is, whether the note was properly rejected? The statute concerning bonds and notes, sec. 4, says, the ob-ligor or maker shall be allowed every just set-off and discount against the assignee or assignor before judgment. The word judgment has found its way in this place by mistake, and the word “assignment” was intended; for we cannot suppose that the law designed to give the maker of a note or bond a right to buy up claims against the assignor or nee after commencement of his action, and thereby ® 7 ¿ ofsubject him to the payment of costs, when at the time of the institution of his suit there was no defence against his claim. in Kentucky and Virginia where the statutes on the subject , . , . P . , . , , oi the assignment of bonds and promissory notes similar to our own exist, it has always been held that a set-off arising from other transactions against the assignor, before notice of the assignment, may be given in evidence on an action by the assignee against the maker. 1 Mar. 510; 1 Monroe, 195; 2 Mar. 202; 6 Cranch; 7 Peters, 608. As to the ob-jeciion that the note was not assigned in writing, and that at law the defendants could not use it as a set-off, it may be observed, that before the statute allowing assignees of choses inaction to maintain suits in their own name, courts of law took notice of the person who w'as really interested, and the ...... beneficial interest vested in the assignee is so far regarded that the defendant is allowed to set off a debt due from the assignee in the same manner as if the action had been brought • , , , , , . in his name; and it would not seem necessary that the niter-est of the cestui que trust should appear in the writ and , . . , , , ,. olara tion, It will suffice in any part of the pleadings. r\ s this action was commenced before a justice, in whose court there are no pleadings, it will be sufficient that the interest of the defendants in the note appears by the evidence. Crozer v. Craig, Washington, 66, 428; 3 Marsh. 351, Jenkins v. Bush. Let the judgment be reversed.

. A note trans. ferred by dc-vahiifbic^con adoration, may be tin subject of set transfer or as-sigmnent b6