19 Ala. 130 | Ala. | 1851
It is adrhitted by, the counsel for the de- _ fendant, that the note was not subject to Jpvy and, sale, and that,, the defendant obtained no title to it by his purchase. But it is. contended, that as the note was not endorsed by. the payee, the legal title is still in him; consequently that the plaintiff cannot
It may, however, be contended that the note was paid, as the word “ paid” was written across the face of it, and that therefore the action cannot be maintained. If the note in truth was paid before the conversion, or in any manner legally discharged, then we admit that trover will not lie to recover the value of it, for in fact it would have no value; but if the word “paid” was written across the face of the note by mistake, or by one without authority, this would not discharge the maker from his obligation to pay, and 'consequently, trover would lie for its conversion; and we think the circumstances of this case were such as required the question of payment to have been left to the jury to determine.
The court erred in the instructions given to the jury, and the judgment must be reversed, and the cause remanded.