Carew v. Northrup

5 Ala. 367

• Court: Supreme Court of Alabama
• Decided: June 15, 1843
• Status: Published

Opinion

CLAY, J.

The question here raised, is settled by reference to the act of June 30th, 1837; [Meek’s Sup. 108, § 1. It is in the following words:

“ That from and after the first day of July next, all bonds, bills, or notes, which shall be madepayable to any person or persons, or bearer, or. to any corporation, or bearer, shall have the effect of creating an obligation, or liability in favor of the corporation, or person or persons, only, to whom any such bond, or note, may be expressly made payable ; and no one but such corporation, or person, or persons, or their endorsee, or personal representative, shall have a right to maintain, in his own name, an action upon any such bond, bill, or note.”

It is obvious, that to enable any other person but the payee, or obligee, of such a bond, bill, or note, to sustain an action in his own name, it must be indorsed — he cannot do so as bearer. [See Kinney v. Campbell, 1 Ala. Rep. N. S. 92.] The note offered, as a set-off, was not payable to the defendant, nor indorsed to him: a set-off is in the nature of a cross action, and can only be good in favor of one who could maintain an action upon it in his own name; consequently, the court erred in admitting the note offered by the defendant, as a set-off.

Let the judgment of the Court below be reversed, and the case remanded.