Clarke v. M'Elroy , 1 Stew. 147 ( 1827 )

JUDGE SAFFOLD

delivered the opinion of the Court.

If the note offered as a set off, had been payable to any other person, and assigned to the defendant, a different question from the present would have been presented ; but being made payable to the defendant, it cannot be presumed that after being sued, he bad obtained it for the purpose of using it as a set off; and though pat able to defendant, or bearer, it does not appear that it has ever been transferred, and it was in defendant’s posses on, when be offered it as a set off. Hogg and Ponsonby were jointly and severally bound by the note, and as. the several debt of each, it was a good set off against either. Let the judgement be affirmed.

See Pitcher and R. against Patrick’s adm’rs, Minor’s Ala. Rep. 321;. Judge Gayle not sitting.