Woods v. Carlisle

Richardson, C. J., delivered the opinion of the court. It has not yet been settled in this state, when a note has been endorsed and actually negotiated after it has been discredited, whether a set-off of demands, in favor of the maker against the endorser, is admissable in a suit brought in the name of the endorsee. The statute provides for a set-off “ where there are mutual debts or demands between the plaintiff and defendant.” It has [28] been settled that the statute means the real, and not merely the nominal, plaintiff. Thus, in the ease of Levi Eaton v. Benjamin Brown, Rockingham, November Term, 1814, it veas decided, where a note, which had been endorsed and sued in the name of an endorsee, slid remained the property of the endorser, that the defendant might avail himself of his account against the endorser, as a set-off. And we are inclined to think, when a man takes a discredited note and sues in his own name, when the defendant has a set off against the endorser, that the endorser must be considered the plaintiff within the meaning of the statute. The endorsee stands in the place of the endorser. 5 Pick. 312, Sargent v. Southgate; 2 Chitty’s Rep. 387, Jarvis v. Chapple; 1 Johns. 319, Hendricks v. Judah; 6 Cowen, 693, Johnson v. Bridge. But it is not necessary to settle this question, at this time, for this set-off is clearly inadmissible on another ground. It is a claim of only one of these defendants against the endorser, and, on that account cannot be received. 7 B. & C. 217, Junes v. Fleeming; 11 Mass. Rep. 140, Walker v. Leighton. 6 Cowen, 261, Wolfe v. Washburn; Montague, 23; 11 Johns. 70, Sherman v. Crosby. Perhaps, if it had appeared that Farrar was only a surety, the rule to be applied might be different. 4 Bingham, 423, Bourne v. Bannett. Judgment on me tend¡rt