4 Ala. 228 | Ala. | 1842
Although the consideration of the note •which the plaintiff is seeking to recover was an indebtedness to Joseph M. Bullock, yet by making the plaintiff the payee, he became invested with the legal right to the sum expressed on its face. The terms “assignee of Joseph M. Bullock,” do not change the effect of the defendant’s undertaking, but rather show under what circumstances he became entitled to the debt. It does not appear whether the notes in which defendant was a surety were paid before this suit was brought — but even if it did, the payment could not be set off in the present action, for the reason that the plaintiff, who is seeking to recover money, does not owe the defendant the demand he makes, but it is due from anotherperson,who neverhad any legal interest in the note declared on. To make aset-off available, thedefendant mustshow that the plaintiff is legally liable to its payment, or else claims as assignee, or indorsee, in virtue of our statute, through some person on whom such a liability rests. In the case before us such a pretence cannot be made, nor was it attempted to be shown that the proceeds of the defendant’s note, when collected, were to be paid to Joseph M. Bullock.
The bill of exceptions does not show that there was any effort at the trial to prove a fraud on the part of the plaintiff in taking the note. His silence at the time it was given does not lead to such a conclusion, for he may not have been informed whether the notes in which defendant was surety had been paid, and consequently could not have answered the question which defendant then proposed to the witness. The case then, as presented by the bill of exceptions, shows a fair transaction, viz: a new promise by the defendant to pay the plaintiff a debt which the former owed a third person, and of which the plaintiff was the assignee. In this view the evidence to establish the set-off was properly rejected — and the judgment is therefore affirmed.