Davis v. Carlisle
Supreme Court of Alabama
Writ of error to the County Court of Perry, Assumpsit by Davis, as indorsee of one William, G. Davis, against Carlisle, as the maker of a promissory note. The defendant pleaded non-assumpsit, verified b,y oath.
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Writ of error to the County Court of Perry, Assumpsit by Davis, as indorsee of one William, G. Davis, against Carlisle, as the maker of a promissory note. The defendant pleaded non-assumpsit, verified b,y oath. The plaintiff, at the trial, produced a note in these terms: “Without defalcation or set-off, there is due William-G. Davis the sum of eight hundred and six 10-100 dollars, which is to be paid without fail by the 1st or 15th day of November next, with interest from date. This October the 12th, 1842.” And proved the defendant’s signature to it. The defendant then proved that the words,…
1Opinion of the CourtOrmond, J.
We think it clear, that the words, “without *709defalcation or set-off,” were, if added without the knowledge or consent of the maker, an important alteration of the instrument. The right of set-off is given by statute, and attaches to every instrument when made. It is, however, certainly competent fo,r any one to stipulate that he will not avail himself of it; and if he does, he will not afterwards be permitted to make an off-set against the note, either in the hands of the payee or his assignee.
It does not follow that a material alteration of a note, though without the consent of the maker,…
2Cases cited1 opinion
- Brown v. JonesSupreme Court of Alabama · 1836
3Cited by12 opinions
- Anderson v. Bellenger & RallsSupreme Court of Alabama · 1888
- Saltmarsh v. Bower & Co.Supreme Court of Alabama · 1859
- Simpson v. StackhouseSupreme Court of Pennsylvania · 1848
- Toomer, Sykes & Billups v. RutlandSupreme Court of Alabama · 1876
- Yeager v. MusgraveWest Virginia Supreme Court · 1886
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