Pitts v. Shortridge's Admr's

7 Ala. 494 | Ala. | 1845

GOLDTHWAITE, J.

— The assignments of error do not raise some of the questions to which our attention has been called,by the written arguments submitted, and for this reason our opinion will be confined to the demurrer to the fifth plea — the concession that the fourth one is bad, leaves this the only point in the case.

It is unnecessary now to decide, whether, if the note sued on was, in fact, the property of the younger Shortridge, the set off held by the defendant against him, would be admissible, because the plea does not put the defence on this ground; that merely asserts that the note sued on once belonged to him, or, rather, that he was invested with the beneficial interest in it, by the transfer and delivery of it, by the plaintiff below, without denying that the legal interest, at the commencement of the suit, was as stated by the declaration. It, then, merely presents the question, whether an off set, held by the maker of a note, against one who holds the beneficial interest in it, without the legal title, can be enforced so as to defeat the right of á subsequent indorsee to recover upon the note.

In Stocking v. Toulmin, 3 S. & P. 35, it was held, that the general statute, which gives assignability to promissory notes, with the restriction that the defendant shall be allowed the benefit of all payments, discounts and sets off,made,had,or possessed, against the same, previous to notice of the assignment, in the same manner as if the same had been sued by the payee therein, did not give the right to set off a debt due from an intermediate assignee, against a subsequent assignee. To the same effect is Kennedy v. Manship, 1 Ala. Rep. N. S. 43. Those decisions are conclusive of this plea, as here the attempt, is, to have the benefit of a set off against one, who never had the legal title to the note, but was merely beneficially interested in the sum to be collected; an interest, too, which ceased before the commencement of the suit. It is not pretended that any right existed, by the common law, to interpose such a set off as this, but if it was, the judgment in Robertson v. Breedlove, 7 Porter, 541, shows, that even where a note is transferred after its maturity, the holder is chargeable only with the equities arising out of the transaction, for which the note was given, and is not affected by a debt in the nature of a set off.

It will be seen that we have given no consideration to the bill of exceptions; this is for the reason before stated, that it is not opened by the assignments of error.

Our conclusion is, that the demurrer to the plea considered, was properly sustained. Judgment affirmed.