This case must be reversed on the merits. Sections 1530 and 1531 of the Code are, on this subject, substantially the same as the 1st section of the act of 1812. Clay’s Digest, 381-2, § 6. Under the "act of 1812, it has always been held, that a set-off against, an intermediate holder of a promissory note cannot be maintained — See authorities on the brief.
To sustain the defense relied on in this case, it was necessary to prove such a contract as, in substance, amounted to a payment. A contract of that description would have vested in the defendants the 'properly in the note which is the subject of this suit; such a title as they could have maintained detinue upon. ¥e apprehend no one would contend that, under the agreement between Nichols and Hunt & Andi’ews, the ownership of the note passed to them. In truth, the. note did not then belong to Nichols, and of course he could not convey a title to another.
The agreement was, at most, executory, so far as the promise of Nichols was concerned. Whether that promise rested on a sufficient consideration to maintain an action against him for its breach, we need not now inquire.
The case of Kennedy v. Manship, 1 Ala. 43, is decisive of this.
Reversed and remanded.