Mcintire v. McLaurin ( 1840 )

Turley, J.

delivered the opinion of the court.

On the 11th day of July, 1838, McLaurin executed his bill single to B. & R. Sessums, for $540, payable the 1st day of January following: this was assigned to the plaintiff McIntire by B. & R. Sessums on the 14th of June, 1839. On the 23d day of June, 1839, B. & R. Sessums executed their note to James Shelton & Co. for $562, payable on the 1st of March following: this note was assigned by James Shelton individually, and not in the name of the company, to McLaurin on the 31st of May, 1839. The plaintiff, McIntire, sued McLaurin and B. & R. Sessums, on the note executed by McLaurin to the Sessums, and they set up the note executed by the Sessums to James Shelton & Co. and assigned by James Shelton to McLaurin as a set off, which was allowed by the court. To this, the plaintiff excepted, and has prosecuted his writ" of error to this court. In the argument, several points are incidentally discussed, all of which, except one, we deem it unnecessary to notice, as that is conclusive upon the question and well settled. The note attempted to be used as a set off, was, "as we have seen, executed to James Shelton & Co. and it was only assigned by James Shelton; this did not,[either upon principle or authority pass the interest in the note to the assignee, and therefore he could not use it, as a set off. This question has been so well considered, and so often determined, that we deem it unnecessary to discuss it, and will merely refer to the authorities, 4 John. Rep. 224: Bailey on Bills, 40; Douglas, 653: 9 Mass. 334: Chitty on Bills, 8th American Edition, 66, 67: 15 East, 7: 2 Peters’s, 186. The judgment of the Circuit court will, therefore, be reversed and the cause remanded for a new trial.