Gary v. James

7 Ala. 640

• Court: Supreme Court of Alabama
• Decided: January 15, 1845
• Status: Published

Opinion

ORMOND, J.

— The charge of the Court was strictly correct. The note which the defendant held upon the nominal plaintiff, was not good as a set off, because he could not maintain an action thereon in his own name. Upon the other ground, however, that the note was procured upon an agreement with Carey, the nominal plaintiff, that it should be set off against the note sued on, it comes within the principle of French v. Garner, 7 Porter, 549. Under that agreement, it would have been a good set off against him, and is therefore good against the beneficial plaintiff, as it was obtained before notice, that the interest of Garey in the note had been transferred. There is no objection to making this proof by parol. Let the judgment be affirmed.