In assumpsit on a promissory note, by indorsee against maker, defendant pleaded that the payee, before, at and ever since the time of indorsement, was indebted to him in a sum equalling the money due on the note, and damages ; and, while so indebted, and after maturity in order to deprive defendant of his set-off, in fraud of defendant and in collusion with plaintiff, indorsed to plaintiff without consideration, in
order to enable him to sue for the use and benefit of the payee : and that plaintiff
commenced and maintains the action as agent for the payee, for his use and benefit, according to the fraud and collusion. And defendant offered to set off, to the payee and plaintiff, the damages sustained by the nonpayment of the note, against the payee’s debt to defendant. Replication : de injuria. Special demurrer to the replication held frivolous, inasmuch as fraud was averred in the plea; and it was immaterial to the goodliness of the replication whether, without such averment, the plea disclosed a defence.
Citations:
[1848] EngR 139, (1848) 11 QB 406, (1848) 116 ER 529
Links:
Jurisdiction:
England and Wales
Contract
Updated: 15 May 2022; Ref: scu.299689