Shirley v. Todd

Weston J. delivered the opinion of the Court. We are satisfied that the declarations of Moses Shirley, the payee of the order, while the interest was in him, are admissible in evidence. No time' was limited in the order, within which it was to be paid. It was then payable presently ; and not being indorsed until three years after its date, the defendant is entitled to the same defence, as against the original payee. Ayer v. Hutchins, 4 Mass. 371. To him the plaintiff has succeeded, and by his admissions, while he was the holder, the plaintiff is bound. Peabody v. Peters, 5 Pick. 3, and Sergeant v. Southgate, 5 Pick. 312, were actions upon negotiable notes, brought by the plaintiffs as indorsees; but in both the declarations of the payees before the indorsment, were received. Before this order was indorsed, the defendant was not indebted to the holder, he having demands against the payee, by which it was overbalanced. Neither then is he indebted to the plaintiff, against whom he has the same defence. But it is insisted that in order to avail himself of it, he should have filed his account in offset. In Holland v. Makepeace, 8 Mass. 418, Sedgwick J. by whom the opinion of the court was delivered, was of opinion that an account could be filed only between the original parties. And this seems to be taken for granted in Peabody v. Peters. But in the latter case, Parker C. J. maintains, with great strength of reasoning, that if such be the law, the defendant may avail himself of his offset, without filing it. ■ There might be great [85] conveniertce in giving notice of offset, according to the English practice; but it is not required to be done before the entry of the action. In the subsequent case of Sergent v. Southgate, the learned Chief Justice reviews the authorities upon this question, in con-nexion with the law merchant, and arrives at the conclusion that an ■ account may be filed in offset against the indorsee of a dishonored note or bill, he standing in the place of the original party. Whether the former or the latter opinion best accords with the law, we are relieved from the necessity of decidingfor such a connexion is shown between the order and the account, as proves satisfactorily, that the one was to go in payment of the other. And where this is made to appear, no account in offset is necessary ; as has been repeatedly decided..- The order was drawn to pay the account. And this must have the same effect, as if the articles charged in the account, were subsequently delivered to pay the order. There can be no difference in law or justice. The exceptions are overruled, and the Judgment affirmed.