The plaintiffs instituted this suit on a promissory note, payable on its face to the Mississippi & Alabama' Railroad Company. The pleas were non- assumpsit and payment. The jury having found for the defendants, a new trial wa.s moved for, and a bill of exceptions, embodying all the evidence, was taken, which presents these questions, to wit: Were the plaintiffs entitled to a new trial on account of misdirection- of the jury ? and are they entitled to such new trial on the evidence 1
The court charged the jury, that if they believed the- Mississippi & Alabama Railroad Company ever owned the note, then the plaintiffs cannot recover, unless the charter authorized the transfer;. and that it was incumbent on the plaintiffs to show *247that authority. At the last term of this court, it was held, that an incorporated bank might, by the indorsement of the cashier, transfer a negotiable, promissory note. It was fully proven that the note belonged to the bank, and was transferred by authority of the directors, in payment of its own liabilities. So that the charge of the court was erroneous.
It was in proof that the consideration of the note was the balance of a stock of goods, sold by Shelton to one of the makers ; that the note was made payable to the bank by Shelton’s request, and discounted for his benefit. The plaintiffs held large claims against the bank, and'received this note and others in payment, and that an equal amount in the notes of the bank were delivered up. The defendants did not file any account of offsets, nor did they introduce any proof whatever to support the issue which they had tendered. There was, consequently, no evidence whatever to sustain the verdict; and it must consequently be set aside,-and a new trial granted.