#### John Hamlin, Admr, &c., Pltff in Error, *v.*Francis P. Kingsley, Deft in Error.

ERROR TO PEORIA.

A. gave his note to B., in consideration that B. should pay one-half of a note previously executed by A., for money borrowed for both; whichB. failed to do. B. assigned the note of A. to 0., who knew the facts. Heidi That in a suit by C. against A. on the note, A. might set up the facts in defense.

This was an action of assumpsit commenced in the Peoria Circuit Court, by William H. Fessenden against Francis P. Kingsley. During the pendency of the action Fessenden diedr and John Hamlin, as Administrator, was substituted as plaintiff in the suit. The action was founded upon a promissory note given by Francis P. to George 0. Kingsley, and by George 0. Kingsley endorsed to Fessenden in his lifetime. The plea of F. P. Kingsley sets out, that at the request of George 0. Kingsley, he borrowed $320. of their sister, for which he gave a note which-George 0. was also to sign, and delivered one-half of the money to George 0. Kingsley, in pursuance of a verbal agreement between the two- brothers, the loan having been made for their mutual benefit. . That a settlement of all accounts between George 0. and Francis P. Kingsley was subsequently had, upon which George 0. Kingsley was paid what was due him. Upon this settlement George 0. agreed to pay off and satisfy the note to the sister; and the note sued on, which was for $160., was given to George 0., for the one-half of the money borrowed which Francis P. retained for his own use. That George 0. refused to pay off or become liable to pay off the note for $320., and therefore the consideration of the note sued on had failed. That the note sued on had been assigned to Fessenden after it became due, and Fessenden had knowledge of this defence.

At March term, 1850, of the Peoria Circuit Court, Kellogg, Judge, presiding, the cause was submitted to a jury, and a verdict was.found and judgment entered for the defendant below, and the plaintiff in that Court sued out this writ of error.

Merrimans & Johnson for Pltff in Error.

0. Peters for Deft in Error.

*345Caton, J.

The evidence shows, that about five years previous to the date of the note on which this suit was brought, the defendant had borrowed of his sister three hundred and twenty dollars, for which he gave her his note, and of which he let George 0. Kingsley, the payee in this note, have one-half, upon the agreement that he should pay one-half of the note given to their sister. This he has never done. When the note in controversy was given, the testimony shows that it was agreed between the parties to it, that it should not be paid unless George 0. Kingsley fulfilled his agreement to pay the half of the first note.

While it may not be competent, to show by parol the agreement made at the time of the execution of the last note, for the purpose of proving a want or failure of consideration, or to vary its terms; still, the first transaction shows an advance by the defendant, of one hundred and sixty dollars to the payee of this note; which, with interest thereon, amounts to more than is due upon the note, and might properly be set off against it, unless Fessenden, the plaintiff’s intestate, was a *bona fide*holder of the note. We think, after a careful examination of the record, that the evidence given at the trial was sufficient to warrant the conclusion to which the jury arrived, that the note was not assigned to Fessenden *bona*fide, and that so much of the amount which was due from the payee to the maker of the note, on account of the advance of the one hundred and sixty dollars, as was necessary to satisfy this note, was properly allowed as a setoff against it. To detail all of the evidence, both direct and circumstantial, which in our opinion justifies this conclusion, would be both tedious and unprofitable, and we do not think it necessary to •do so.

The judgment is affirmed.

*Judgment affirmed^*