Brown v. Foster
Supreme Court of Alabama
Whit of Error to the Circuit Court of Tuscaloosa county. Assumpsit by Brown, who states in bis declaration that he sues for the use of Clements against Foster. The plaintiff sues as indorsee of a promissory note, not payable in bank, made by -one Atkins, payable to one Beard, by him indorsed to the defendant, and by him to the plaintiff. The declaration contains the averment of suit against the maker, and the return of the execution against him of nulla bona.
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Whit of Error to the Circuit Court of Tuscaloosa county. Assumpsit by Brown, who states in bis declaration that he sues for the use of Clements against Foster. The plaintiff sues as indorsee of a promissory note, not payable in bank, made by -one Atkins, payable to one Beard, by him indorsed to the defendant, and by him to the plaintiff. The declaration contains the averment of suit against the maker, and the return of the execution against him of nulla bona. The defendant pleaded non assumpsit, payment and set-off, to which there are replications and issues. The pleadings are in short by…
1Opinion of the CourtGoldthwaite, J.
1. We think it must be intended from the allegations of the declaration that Brown commenced the suit against Atkins and prosecuted it to judgment in his own name, without any designation of a use to another.
The effect of this suit was to destroy the negotiable quality of the noie, which thereby became merged in the judgment and was therefore incapable of further transfer.
Having thus lost its negotiable quality, no right of action from any indorsement on it could be transferred to Clements so as to enable him to maintain an action in his own name. The reason why this cannot be done is. that…
2Cases cited1 opinion
- Chisholm ex rel. Bigelow & Co. v. NewtonSupreme Court of Alabama · 1840
3Cited by6 opinions
- Knighton v. CurrySupreme Court of Alabama · 1878
- Thompson v. DrakeSupreme Court of Alabama · 1858
- Alabama Power Co. v. HamiltonSupreme Court of Alabama · 1917
- Hampton v. ShehanSupreme Court of Alabama · 1845
- Myatt v. LockhartSupreme Court of Alabama · 1846
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