Richardson v. Farnsworth
1 Stew. 55
Ala.
1827
Check Treatment
By JUDGE SAFFOLD.

It is to be observed that the bill of exceptions contains blanks for the insertion of a copy of the note and the endorsement there m, from which it is contended, the exceptions tak n are not regularly before the Court. It is conceived, however, that the copies are unnecessary to be shewn in the bill of exceptions. The declaration has but one count; that is a special one, describing the note sued on, under which no other was admissible as evidence. We must therefore infer that the one given in evidence, corresponded with that described in the declaration. But supposing it to be a different note, if re- eived as evidence of the debt, the proof of payment could have-been no less admissible against it than any other.

The rejection of the evidence offered., is assigned for error. The statute a entitles the defendant, in case of assigned bonds,-notes, &c. to the “.benefit of all payments, discounts, and sets off, made, had or possessed, against the same previous to notice of the assignment.” Under this statute, the defendant is authorized to avail himself of any payment made to any person to whom the note has been transferred, or who is otherwise legally authorized to receive it. Bpt it is contended on the part of the plaintiff below, that these pleas were not sufficiently special and descriptive of the time and amount of the payment, or of the person to whom it was made, to authorize the introduction of proof of payment, to a person not named in the mote or declaration. With respect to the amount, the pleas refer expressly to the sum mentioned *57in tbe declaration, with the interest due thereon. The first plea avers payment before the defendant had notice of the assignment to the plaintiff. This excludes the idea of the payment having been made to the plaintiff, and furnishes notice to him, that a different defence might be attempted. Under the general issue, had that plea been filed, almost every available defence would have been admissible ; under these pleas, the danger of surprise cannot be greater from the evidence offered. These pleas do not expressly aver payment to the plaintiff in the action, but say generally, that the money has been paid. The statute secures to the maker the benefit of payments, made previous to notice of the assignment to the .plaintiff, from which alone the defendant might anticipate the possibility of such defence. It is also to be considered, that the plaintiff, by replying to the pleas, has thereby waived any defect or informality in them. Judgement reversed, and cause remanded.

The Chief Justice not sitting.

Laws Aia. 69.