Huling v. Hugg , 1 Watts & Serg. 418 ( 1841 )

The opinion of the Court was delivered by

Rogers, J.

A debt or demand to be set-off under the statute, must be an existing debt or demand, at the time of the commencement of the suit. Carpenter v. Butterfield, 3 Johns. Cas. 145; Jefferson County Bank v. Chapman, 19 Johns. 324. To avail himself of a set-off a defendant must prove when it came to his hands. Ogden v. Comly, (2 Johns. 274, 8.) These decisions are recognized in Morrison v. Moreland, (15 Serg. & Rawle 63,) and in Stewart v. The United States Insurance Company, (9 Watts 126.) The defendant rests his defence on what he calls the equity of his case; but it is difficult to perceive in what its peculiar equity consists. The defendant accepted an inland bill of exchange, which failing to pay when due, it was protested for non-payment, and suit was brought to enforce the performance of the contract. At the commencement of the suit, he had no defence whatever, but he afterwards purchased for the purpose, or procured in the usual course of business, and had assigned to him, the debts, one a judgment, the other a note, which he offers as a set-off to the plaintiff’s demand. In nothing does it differ from Carpenter v. Butterfield, where this point is fully examined, and where most of the arguments which have been urged here are noticed by the court. The objection to the judgment is not because it is in that form, for that would be unavailable, but because it was not the property of the defendant until suit brought. And this appears as well from the admission of the defendant, as from the testimony itself. There is an additional objection to the note, that it was not due at the institution of the suit.

It is also said, the court erred in refusing to instruct the jury that from the face of the note the plaintiff could not recover without endorsing it. There is nothing in this exception; the note is payable to the order of the plaintiff, and does not require an endorsement to enable the payee to maintain a suit on it. A bill payable to the order of A, is the same as if payable to A or order.

Judgment affirmed.