#### Rufus Haywood *adm’r. of*J. G. Blount *v.*Edmund D. McNair.

A-bond payable on demand, which is assigned eight years after its execution, is dishonored, and liable in the hands of the assignee to all the defences, which the obligor had against the obligee.

But these defences in order to be available at law must be legal defences.

This was an action of debt upon a bond executed by the defendant to *David Barnes,*and by him assigned to. *Sherwood Haywood,*the first administrator of *J. G. Blount.*Upon the death of *Sherwood Haywood,*administration *de bonis non*upon the estate of *Blount*issued to the plaintiff.

The cause was defended upon the ground, that the bond was overdue when assigned, and that the defendant had a set-off against *Barnes,*to a greater amount.

On the trial at Edgecomb, before Swain, Judge, on. the last circuit, the case was, that the bond on which the action was brought *was*for $428, payable on demand, with interest from November 1st, 1820, and dated January 9th, 1821. The plaintiff proved, that on the 25th of November, 1828, *Sherwood Haywood*sold the perishable property of his intestate upon a credit of six months, the purchasers to give bond with surety — that *Barnes*purchased a quantity of corn, amounting in value, to S408, and not having complied with the terms of the sale, the administrator directed his agent to call for a bond with surety — that on the 27th of the same month, *Barnes*deposited with the agent the bond on which the suit was brought, to remain in pledge until he had complied with the terms of the sale, and at the time of doing this requested the agent to say nothing about it to the defendant — that the agent did not mention the circumstance to *McNair,*until the month of April followingj when *Mc-Nair,*upon the bond being presented to him, refused to pay it — that in May following, *Sherwood Haywood*had a conversation with *McNair,*when the latter observed, that *“ Mr. Jackson*had a demand upon the estate of *232
      *u Blount*to nearly the amount of the bond, and *as*he had *“*ittopay. or *if*heliad ittopay, he would prefer making *u*paymentto *Jackson,”*k.requested thatthemattermight be arranged accordingly, which was agreed to. In the same conversation, the defendant requested *that Barnes*might be induced to take up the bond, and give another security, saying if he could get it back into his hands he had. a set off against it. In the hope of effecting one of these proposed arrangements, the bond was retained by the agent until after the 1st of July following, when *Mc-Nair*refusing to pay it,' an assignment of it was taken from *Barnes*to *Sherwood Haywood,*as administrator. The defendant produced a note for Si839, dated November 28th, 1828, payable the 1st of March, 1829, to *Sherwood Hayzvood,*signed by him as surety *for,Barnes,*on which there was an indorsement of paym ent in full, on the 1st of July, 1829.

His Honor left it to the jury to enquire into the character of the transaction between *Barnes*and the agent of *Sherwood Haywood,*and instructed them, that if they should be satisfied that the request of *Barnes*not to mention the deposit of the bond to the defendant, and the compliance of the agent with that request, was the result of a combination between them to withhold the information from the defendant, that he might be the more easily induced to become the surety of *Barnes in the note*for gl'839, *to' Sherwood Haywood,*or with the view of defrauding the defendant in any way, the plaintiff would be affected by the fraudulent conduct of the agent, and they ought to find a Verdict for the defendant. That if the bond was delivered on the 27th of November, 1828, in good’ faith, for the purpose of securing the purchases of *Barnes,*the deposit gave the administrator of *Blount*an equitable interest in it, and that having subsequently procured án assignment of it, he had thereby acquired a legal title, and had a right to institute this suit — that the fact that the defendant became Barnes’' surety on the day following the deposit of the note by the latter, constituted no defence to the action ; and that even if he had paid the.money on that day, the assignee), having receiv-*233c'd the bond on the day previous, had the prior equity.

A verdict was returned for the plaintiff, and the defendant appealed.

The *Attorney General*and *Gaston,*

for the defendant, cited 3' *Kent’s Com.*61. *Furman*v. *Haskin.*(2 *Caines*369.) *Hendricks*v. *Judah.*(1 Johns. Si9.) *Losee*v. *1 tan-tán. (7 Id. 70.) Meghan*v. *Mills.*(9 *Id.*64,) *White*v. *Kibl.hig.*(11 *Johns.*128.) *Chitty on Bills,*131, 2, 3. *Thompson*v. *Hall.*(6 *Pick.*259 )

*Hogg*and *Badger, contra,*

argued that as this set-off was not within the strict letter of the statute, but was only allowed upon the equitable principles adopted by courts of law, the delivery should be considered equivalent to assignment, as .in a court of equity. *(Charles*v. *Marsden,*1 *Taunt.*223. *Sanford*v. *Mickle,*4 *Johns.*224.)

HeNdersoN, Chief-Justice.

This note, altho’ payable on demand, from the great length of time since its date, is overdue, and therefore dishonored : by which is meant, that if assigned, it is subject to all defences, and exceptions to its payment in the hands, of the assignee, to. which it was open in the hands of the assignor. But if the defences are of a legal nature, they are to be made in a court of law ; if of an equitable nature, they must be made in a court of equity. The equities of the parties are not examinable in a court of law, any more than the equities between other parties. Therefore, whether *Haywood*had a right to call for an assignment, before the payment of the money by *McNair*as *Barnes’*surety, because the note was in his hands, as collateral security for a debt due from *Barnes*to him, and whether he had not forfeited that right as to *McNair,*by agreeing to keep, the deposit secret, and not disclosing it to *McNair,*when he accepted him as *Barnes’s*surety for the debt of gl 839, are all questions, with which a court of law has nothing *to*do. And the principal question, and in fact the only one in this case is, what were the legal rights of the parties when the plea of *McNair*was put in. This depends on the rights of *Barnes*at the time of the assignment. *234if it was subject to the defence offered against *Haywood,*when in the hands of *Barnes,*it is subject to the same de-fence in the hands of *Haywood.*For *Haywood*took the assignment, subject to all exceptions, in his hands, to which it was subject when in those of *Barnes,*at and before the assignment. With this explanation, a mere statement of the facts will, I think, decide the question. •At the time of the assignment, *McNair*had paid for *Barnes,*as his surety, money to a greater amount than was due on the note. *Barnes*was then *McNair’s*debtor to that amount. And if *McNair*had then been sued by *Barnes*on this note, he could have pleaded this debt in bar to the action, as a set-off. Therefore when sued by *Haywood*as *Barnes’*assignee, the same defence being open to him, not to be sure by way of the plea of setToff against *Haywood,*but in bar of *Haywood’s*action by reason of the set-off, which he had against *Barnes,*the de-fence must be sustained. For it has been often said before, if,tlie set-off against *Barnes*was- a bar to *Barnes’*action, it is a bar to *Haywood’s*also. The *conversation*which passed in April did not amount to such a fraud on the part of McNair, as to preclude him from using this defence. Nor is it an abandonment of it. What he then gave up, (if he gave up any thing,) was not purchased by *Haywood.*He neither paid any thing, nor did he forego any right in consequence of *it;*nothing grew out of it beneficial to *McNair,*coming from *Haywood.*Nor Was any loss suffered by *Haywood*in consequence of any promise made by *McNair.*But it is evident that no new obligation was intended to be incurred by the one, or acquired by the other. I forbear to enter into an examination of the authorities, for they are not in opposition *to*what has been said. The case in *Johnson*only establishes this position: that wherethere is any thing flowing .from the maker, which holds out that anote, although overdue, is still unpaid in whole or in part, as by making payments, he shall not be permitted to say that nothing is due on it. It would be more consistent with principle, if it had precluded the maker from showing that nothing had ever been due, as a total mistake in giving it.' *235For the partial payments are in opposition to such an a-verment. For I cannot see how a partial payment precludes a partial mistake in the amount due being shown. It does not appear to me, that such a circumstance renders a dishonored note negotiable again, in the proper sense of the term. When a note is given, it is an' acknowledgment that the amount is due. The making of a partial payment amounts only to the same thing, that a balance is due ; which balance may become dishonored, if not paid in a reasonable time on anote due on demand: to which such payment may possibly convert all notes, where the time of payment is past. But let this be as it may, *McNair*held out no false lights as to the facts to *Maywood. Maywood*was as well acquaint *Nair’s*ground of defence as *McNair*hi better with his equitable grounds, from *Barnes’*note with *McNair*as surety, untj that *Haywood*held the note in question^ curity for another debt. . V\ £,

There is nothing in the argument, thaxftjis the demah is not against *Haywood,*but against Barnes,T used as a set-off-; because that relates to mutual debts between plaintiff and defendant. The point is, if *McNair*had a set-off, a counter claim against Barnes,it forms a plea in bar against his assignee.' The conclusion of the plea is not as in the plea of set-off; and therefore he sets off said debt against a demand on the part of the plaintiff, and which of course he acknowledges to be due the plaintiff; but he pleads the demand against *Barnes*as a bar to *Maywood’s*action, to whom he denies any thing to be due.

Hah, Judge.

From the statement of the case furnished by the record, it is necessary to ascertain what are the legal rights of the parties.

It appears that the note, on which the suit is brought, was executed on the 9th day of January, 1821, payable on demand ; that it was deposited with *Sherwood May-wood’s*agent, on the 27th day of November, 1828, and .that it was assigned to *Sherwood*aftm- the 1st day of Judy, 1829. At that time *Sherwood Haywood*first acquired *236the legal title to it; and as the note was payable many ”7ears before that time, lie could only acquire by the assignment, such legal rights against *McNair,*as *Barnes*]jjmse}f Could enforce against him. This leads to the inquiry, what were the rights of *McNair*against *Barnes,*or in other words, what defence could *McNair*set up to a suit brought on the note by *Barnes.*

It appears, that before the assignment was made to *Haywood,*JWcJVair had paid for *Barnes;*upon a judgment obtained against *Barnes*and himselí'ás surety for *Barnes,*the sum of $1839, besides interest There was certainly nothing to prevent him from pleading that as a set off, *to*a suit brought on the note against him by *Barnes ;*consequently, as *Haywood*succeeded only to *Barnes’'*rights, he may make the same defence to an action brought on the note, by him, as.assignce of *Barnes.*

But it has been relied upon in argument for the plaintiff, that circumstances have occurred, which throw this case out of its ordinary legal channel. It appears, that *Sherwood Haywood*and the defendant had a conversation in the month of May, in which the defendant remarked, that *“ Mr. Jackson*had a demand upon the estate of plaintiff’s intestate of about the amount of the bond; and *as he had it to pay,*or *if he had it to pay,*he would prefer making a settlement with *Jackson,”*and asked that an arrangement of this kind might be made, which was agreed to. The defendant further requested, if it could done, that *Barnes*should *be*induced to take up the bond by substituting one on some other person,’ saying that if he could get it back into his hands, he would have a set off as against him. Now I think it makes no difference,, whether in this conversation *ihe*defendant said, *as*be had it to pay, or *if he*had it to pay. Be it either, he only showed an ignorance of the law of his case. It certainly did not amount to a promise or a new contract. In the conversation, the defendant manifested a disposition to avail himself of his set- off against *Barnes.*His mistake was, that he did not know he could do so against the plaintiff.

Another circumstance may be here noticed, which (if it has any effect) certainly militates against the plains-*237■tiff’s claim.. When the note was deposited with the plaintiff’s agent, *Barnes*requested him to keep it con-coaled from the defendant. He did so until the following April,' when application was made for payment, and the defendant refused to pay it. The day after the note was pledged, the defendant became *Barnes’*surety for the money, which the case states he has since paid off. Now had the defendant known, that *Barries*had parted with his note, he might less readily have entered into that suretyship. '

1 see no grounds on which the plaintiff is entitled to recover, and I think the rule for a new trial should ho made absolute.

Per Curiam. — Judgment reversed.