#### Joseph T. Clark *versus*Pelatiah Leach.

It is no defence against an action upon a promissory note by the promisee against the promisor, that the former is indebted to the latter to a greater amount than is due by the note, unless such demand be filed according to the statute.

Assumpsit upon a promissory note, by the endorsee against the promisor.

At the trial, which was had at the last November term in this county, it was agreed that the note in question, which was dated November 5, 1807, for 150 dollars, payable to *Henry Dyer*oi order on demand, was signed by the defendant, and endorsed by *Dyer*to the plaintiff six months after it was due.

The defendant proved that *Dyer,*the promisee, was long before, and at the time of the endorsement of this note, justly indebted to him on unsettled accounts between them, and at the time of the trial was still indebted in a greater sum than was due on this note ; that *Dyer*endorsed the note to the plaintiff to save himself from being committed to jail on the plaintiff’s suit, and that he, Dyer, was insolvent. It also appeared in evidence that the defendant was a man of large property.

The defendant contended, at the trial, that he was entitled to the same defence against the plaintiff as he would have been against *Dyer,*had he been the plaintiff; and that if he * proved either payment,- or an existing debt due from [ *52 ] *Dyer*to him before and at the time of the endorsement of the note to the plaintiff, which might have been filed or pleaded in offset, or which he might have availed himself of in any way as a legal defence against *Dyer,*or have applied to the payment of the same, had *Dyer*been the plaintiff, then the defendant was entitled to a verdict.

But the judge, who sat in the trial, instructed the jury to find their verdict for the plaintiff; because the sum due as aforesaid, before the endorsement of the note to the plaintiff, was not proved to have been in actual payment of, or advance made by, the defend ant to *Dyer*towards the note.

*62The defendant objected to the said instructions, and a verdict having been returned for the plaintiff, the action stood over for the consideration of the Court.

*Thurston,*for the defendant, cited the cases in the margin. (1)

*Selfridge*for the plaintiff.

(1)

1 *Mass. Rep.*1, *Gold*vs. *Eddy, Adm.*—3 *Mass. Rep.*12 Wilson, vs. *Clements.*— 4 *Mass. Rep.*370, *Ayer*vs. *Hutchins & Al.*— 2 *Caines's Rep.*368, *Furman*vs. *haskin.*—1 *Johns. Rep.*319, *Hendricks*vs. *Judah.*— 6 *D. & E.*57, *Dickson*vs. *Evans.*— 1 *Johns. Cases,*51, 169, 331.

*Per Curiam.*

The defendant is correct in his general position, that he is entitled to the same defence in this action as if *Dyer*had been the plaintiff. But in that case, he should not have availed himself of the defence urged at the trial, unless he had filed his account by way of set-off, pursuant to the statute. The direction to the jury was right, and there must be (a)

*Judgment on the verdict.*

*63ADDITIONAL NOT®.

[See *Grene*vs. Burditt, 9 *Pick.*265. — *Cary*vs. Brancroft, 14 Ibid. 315. — *Wood*vs. Warren, 3 *Applet. (Maine)*23.— *Wiggin*vs. *Damrell,*4 N. H. 69. — *Albee*vs. *Little,*N. H. 277. — *Martin*vs. *Trobridge,*3 *Verm. 477.—Smith*vs. Van *Loan,*16 *Wend.*659.— *Eaves*vs. *Henderson,*17 *Wend.*790. — *Hodge*vs. Cromby, 2 Miles, 286.— *Stedman*vs. Gillson, 10 *Conn.*55. — *Tilton*vs. Britton, 4 *Halst.*920. — *Emanuel*vs. Atwood, 6 Port. 344. — *Perny*vs. Mays, 2 *Bai.*354. — *Nicoll*vs. Bate, 10 Yerg. 429.

In a suit by the promisee against the maker of a note, the latter cannot offset against it a demand against a third person, which the plaintiff was not originally bound to pay, though he has made a binding agreement that the defendant shall receive such claim from his estate after his death. — Foot vs. Martin, 1 *Metc.*273.

A negotiable note, payable on demand, was transferred and delivered by the payee, within a month from its date, for valuable consideration, but not endorsed till two years afterwards. In an action by the endorsee against the makers, held, they could not offset a demand due to them from the promisee, at the making and delivery of the note. — *Ranger*vs. Cary, 1 *Metc.*369.

A note payable in bank, and assigned before maturity, is not subject to an offset against the payee. — *O'Hara*vs. *The*Bank, &c., 2 *Alab.*367. — See *Adams*vs. M' *Grew Ibid.*675. — *Kennedy*vs. Manship, 1 Ibid. 43. — F. H.]

(a)

**[In *Holland*vs. *Makepeace,*(8 *Mass. Rep.*418,) it was held that a demand, to be the subject of a set-off, must have arisen from transactions between the parties in the suit. And this seems to be a reasonable construction of our statutes. They do not provide for, or contemplate, the filing of demands, in set-off, in any other case. In *Peabody*vs. *Peters & Al.,*(5 *Pick.*1,) *Parker,*C. J., said there were strong reasons, as well as authority, in the case of *Holland*vs. *Makepeace,*against allowing a defendant, in a suit by the endorsee of a promissory note, to avail himself of a demand against the payee in the form of an account filed in set-off; but he expressed a settled opinion that the facts might be given in evidence, and avail the defendant, under the general issue. In *Stockbridge*vs. *Daman,*(5 *Pick.*225,) such evidence was admitted, as it seems, under the general issue, and the verdict for the defendant was confirmed. This is directly contrary to the case reported in the text. But in *Sargent*vs. *Southgate,*(5 *Pick.*317,) an action by an endorsee of a note where the demands were filed in set-off, and the case of *Makepeace*vs. *Holland,*and *Clark*vs. *Leach,*above reported, were cited for the plaintiff. *Parker,*G. J., in giving the opinion of the Court, undertook to distinguish between those cases and the case then under discussion, saying that there was nothing in *Holland*vs. *Makepeace*analogous to the case before them; that the reasoning of *Sedgwick,*J., in support of the opinion he gave, was not required by the facts of the case; and that the case of *Clark*vs. *Leach*was distinguishable, because it was decided on the ground that the demand of the defendant had not been filed in set-off. There seems to be less reason for admitting this defence by way of set-off, because it does not proceed on the ground that the note was satisfied, or that there was any vice in it, or that it was invalid at the time of the negotiation; and matters of account, *inter alios,*cannot conveniently be examined, and because the defendant is not bound to try the validity of his claim in the action on the note, but may bring a separate suit if he elects so to do. — *Minor*vs. *Walter,*17 *Mass. Rep.*237. — See *Knapp*vs. *Lee,*3 *Pick.*459.

In *Hallowell & Augusta Bank*vs. *Howard Al.,*(13 *Mass. Rep.*235,) which was sn action on a note payable to the bank, which was not negotiable, but had been assigned, the court intimated an opinion that, if the assignment were out of the question, bank notes issued by the plaintiffs to the amount could not be filed in set-off, or given in evidence in defence. But in *Sargent & Al.*vs. Southgate, Parker, C. J., referring to that case, said, “ If these notes had been filed in set-off, having come into the defendant’s hands *bond fide*before the failure, without doubt they would have constituted a defence.”

In *Richards*vs. *Blood,*(17 *Mass. Rep.*66,) and *Truesdell*vs. Wallis, (4 *Pick.*63,) notes of hand were allowed to be given in evidence to support a claim in set-off foi money paid. — Ed.]