Atkins v. Knight
Supreme Court of Alabama
Appeal from Circuit Court of Butler. Tried before Hon. P. 0. Harper. This is an action by Knigbt, as transferee, against Atkins, as maker of a promissory note.
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Appeal from Circuit Court of Butler. Tried before Hon. P. 0. Harper. This is an action by Knigbt, as transferee, against Atkins, as maker of a promissory note. The defense was non assumpsii, failure and want of consideration, “with leave to give in evidence any thing that might be good matter of defense under any plea not required to be sworn to,” and a special plea alleging in substance that Yeldell, the payee of the note, being insolvent and in contemplation of bankruptcy, with a view of preferring a creditor, and in fraud of the bankrupt act, within less than four months before his…
1Opinion of the CourtB. F. Saffold, J.
The defendant, Atkins, was at liberty to buy a set-off against his note to Dr. Herbert, but the purchase should have been absolute, not conditional. As he was to pay Veldell only in case he made the claims against Herbert available, he had no such property in them as would entitle him to use them as a set-off. — McDade v. Mead, 18 Ala. 214. His fraud consisted in concealing the conditional character of the purchase, and in ante-dating the agreement, for the purpose of precluding Herbert’s right to transfer or sue on his demand.
Assuming that Atkins’ note was given with the understanding…
2Cases cited3 opinions
- Abney v. Kingsland & Co.Supreme Court of Alabama · 1846
- Agee v. MedlockSupreme Court of Alabama · 1854
- McDade v. MeadSupreme Court of Alabama · 1850
3Cited by1 opinion
- Marshall v. A. Shift & SonSupreme Court of Alabama · 1900