Chilton v. Comstock
Supreme Court of Alabama
WRIT of Error to the Circuit Court of Benton county. Assumpsit on a promissory note made by Chilton to Mc-Campbell, and by him assigned to Comstock. Pleas, non as-sumpsit, payment and set off. Verdict and judgment for the plaintiff. At the trial the- plaintiff gave in evidence the note described in his declaration, which was indorsed in blank and is not payable in Bank.
Read the full summary
WRIT of Error to the Circuit Court of Benton county. Assumpsit on a promissory note made by Chilton to Mc-Campbell, and by him assigned to Comstock. Pleas, non as-sumpsit, payment and set off. Verdict and judgment for the plaintiff. At the trial the- plaintiff gave in evidence the note described in his declaration, which was indorsed in blank and is not payable in Bank. The defendant then proved, that before the transfer of the note, McCampbell, the payee, had purchased from Chilton an account due from another person, for a greater amount than the note, and agreed the account should be a…
1Opinion of the CourtGoldthwaite, J.
It is evident that the account transferred by Chilton to McCampbeil was not taken as an absolute payment, and in extinguishment of the note. The utmost effect of the agreement is, that the note should be taken as a conditional payment. The rule in such a case is, that the original liability is not impaired in any respect, and the plaintiff may sue on it without any return or offer to return the substituted paper. [Clark v. Young, 1 Cranch 181; Abercrombie v. Mosely, 9 Porter, 145; Trotter v. Crockett, 2 Porter, 413.]
It may be conceded that the same rules will apply to any defence to this…
2Cases cited3 opinions
- Clark v. Robert Young & Co.Supreme Court of the United States · 1803
- Abercrombie v. MoselySupreme Court of Alabama · 1839
- Trotter v. CrockettSupreme Court of Alabama · 1835
3Cited by1 opinion
- McGehee v. SlaterSupreme Court of Alabama · 1874