#### Vanvacter *v.*Patterson.

*Tuesday, May*28.

Suit against the maker of a sealed note for the payment of money, brought by *V.*as assignee of *M.,*who was assignee of *B.*the payee. Plea of payment to the payee before notice of his assignment to *M.,*claiming as set-offs certain notes of *B.,*one of which was payable to the defendant, and the others were assigned to him. Replication, that the defendant had notice, &c.

*Held,*that the notes and assignments mentioned in the plea might be read in evidence by the defendant. *Held,*also, that evidence offered by the defendant, that *M.*transferred the note declared on to *W.*by a blank indorsement, that *W.,*without indorsing it, transferred it to *T.,*that the latter transferred it by delivery to *B.,*who in the same manner transferred it to the plaintiff, who, before the maturity of the note, filled up the blank indorsement to himself, — was inadmissible under the issue.

ERROR to the *Union*Circuit Court.

Dewey, J.

— Debt by *Vanvacter*against *Patterson.*The action is founded on a sealed note made by the defendant to one *Bagnell*for 200 dollars, dated *March*the 27th, 1838, payable in three years from *December*the 25th, 1838, and assigned by Bagnell, *March*the 15th, 1839, to one *Marsh,*and by him to the plaintiff. The defendant pleaded the statutory plea of payment to *Bagnell before notice of the*assignment by him to *Marsh;*and alleged as matters of set-off three notes; one made by *Bagnell*to the defendant, *August*the 11th, 1840, for 65 dollars payable *December*the 25th of the same year; one made by *Bagnell*to one Hanna, *July*the 2d, 1840, for 90 dollars payable *December*the 25th, 1840, and assigned *by Hanna*to the defendant *May*the 27th, 1841; and another made by *Bagnell*to one Brandenburgh, *August the*16th, 1840, for 60 dollars payable *December*the 25th, 1840, and assigned by *Brandenburgh*to the defendant *April*the 10th, 1841. The plaintiff replied, that the defendant had notice of the assignment of the note mentioned in the declaration by Bagnell, as the assignment is therein alleged, before he received the notes described in the plea; conclusion to the country, and issue. . The cause was submitted to the Court without a jury.

On the trial, the plaintiff produced the note and assignments set out in the. declaration, and proved that Marsh, on the 15th of March, 1839, notified the defendant of the assignment by *Bagnell*to *Marsh;*and that the defendant then admitted *95that he held no set-off against the note. The defendant produced the notes and assignments described in his plea, to the admission of which in evidence the plaintiff objected, but they were admitted. The defendant was also permitted to prove, notwithstanding the objection of the plaintiff, that Marsh, the first assignee of the note declared on, transferred it to one *Wainright*by a blank indorsement, that Wainright, without indorsing it himself, transferred it to one Tappen, who transferred it by delivery to Bagnell, who, in the same manner, transferred it to the plaintiff, who, before the maturity of the note, filled up the blank over *Marsh's*name by an assignment to himself. The Court, after deducting certain credits which appeared upon the notes produced by the defendant as matters of set-off, allowed the amount due upon them in favour of the defendant, and rendered a judgment for the plaintiff for the difference between that amount and the sum due on the note which is the foundation' of the action.

We do not think the Court committed any error in suffering the notes and their assignments mentioned in the plea to go in evidence. Their existence was admitted by the pleading ; and it was proper they should be read. But it was erroneous to admit the parol evidence. The issue was, whether the defendant, before'he acquired the matters of set-off, had notice of *BagnelVs*assignment of the note declared on to *Marsh.*The evidence was foreign to that issue, and should, therefore, have been excluded. To let in such evidence, the defendant should have framed his plea differently. He should have shown that Bagnell,. after his assignment to Marsh, again became the legal owner of the note, and that the defendant held the matters of set-off during such second ownership, or that he acquired them without notice of *BagnelVs*second transfer. Such a plea would have conformed to the facts of the case, and would, under the statute regulating the assignment of notés not negotiable by the law merchant, have barred the action, unless the plaintiff could have replied and proved notice to the defendant of *BagnelVs*assignment to the plaintiff, before the defendant procured the notes relied on as set-offs.

As the issue stands, -it was supported by the plaintiff by his proof that the defendant had notice of *BagnelVs*assignment *96to Marsh, before he procured any notes against *Bagndl;*and the judgment should have been in favour of the plaintiff for the full amount of the note declared on.

*J. S.*Reid, for the plaintiff.

*J. S.*Newman, for the defendant.

*Per Curiam.*

— The judgment is reversed with costs. Cause remanded, &c.