Gee v. Bacon , 9 Ala. 699 ( 1846 )

ORMOND, J.

The set-off attempted to be made in this case, was properly rejected by the court. A set-off is in the nature of a cross action, and can only be made by one, who can maintain an action thereon in his own name, against the party whose debt it is proposed to extinguish by the set-off. The debt sued on, and the debts proposed to be set-off, are not due in the same right. The bank notes, entitle the holder to a suit against the Pennsylvania B. of the TJ. S., whilst the note in suit, is given to, and is sued upon, by third persons. They are, it is true, alledged to be mere trustees, and assignees of the Bank, but as such they do not necessarily represent the interest of the Bank. If we cannot judicially notice, that the bank has gone into liquidation, and its assets placed in the hands of trustees for the benefit of its creditors, the admission of the plea, that the bank has made an assignment, raises the presumption that the assigned property is held for the benefit of others.

The case of Bowen v. Snell, at the present term, is wholly unlike this case. That was an attempt to defeat the set-off by a simulated suit, by placing one upon the record as the beneficial plaintiff, who had no interest in the matter. This we held to be a fraud upon the statute, and permitted the off-set to be made against the party really interested. Here the bank is not the party really interested ; the true interest is in those who are represented by the assignees of the bank, and against them it is clear these bank notes are not a good set-off.

The charge of the court upon the question of usury, is equally free from error. A promise on sufficient consideration, to an innocent holder of a usurious security, is a waiver of the usury. [Cameron & Johnson v. Nall, 3 Ala. 158.] It appears, that the plaintiff in error had made a settlement with Poe, the former agent of the bank, and had paid off the usury by transferring to him notes on third persons, with a guaranty of their solvency. Poe ceased to be agent, and the notes so transferred, were reduced to judgment by Barney, the agent of the assignees of the bank. An agreement was then made by Barney, as agent of the assignees, and the plaintiff in error, by which the latter obtained the control of the judgments, and extinguished his guaranty, and in consideration thereof, executed the note now in suit: Barney, as it appears, being ignorant of the usury affecting the original transaction. It is obvious, that the plaintiff in error could not have interfered to prevent the assignees from collecting the judgments they had recovered on the assigned notes; their transfer therefore to him, was a sufficient consideration for the note executed by him, and cannot be impugned in their hands, because of the taint of the original transaction, to which they were not privy, and of which it appears they were ignorant, when they yielded up the judgments they had recovered. This brings the case fully within the principle settled in Cameron & Johnson v. Nall, supra. To permit this .defence now to be made, would be a fraud upon the assignees.

Let the judgment be affirmed.