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Tedlie os. Dill.

with no evidence whether it was one or the other. The mode of obliteration might have furnished arguments in favour of one or the other supposition, and material confirmation to any proof adduced as to that fact. But, standing by itself, it was obviously no better than a conjecture ; for the alteration might have been too late, and accompanied with a fresh marking by wet ink rubbed over at the instant."

The case therefore would be with the defendants, did not the judiciary of 1799 come to the plaintift''s relief. It declares, "that no person shall be permitted to deny any deed, bond, bill, single or penal note, draft, receipt or order, unless he, she or they shall make affidavit of the truth of such answer, at the time of filing the same.” Prince Dig. 421. That is, at the court to which the petition and process are made returnable.

This point has been well considered, and in the opinion of this Court, no person can be allowed to deny the genuineness of any instrument which is the foundation of the action against him, unless he verifies the truth of his defence. Profert being made of the paper, (and it must be made in all cases, the defendant can by inspection at the appearance term, decide, whether any alteration has been made since its delivery and frame his answer accordingly, setting forth the facts under oath “plainly, fully and distinctly.” This done, it devolves upon the plaintiff to show that the alteration was made at the time the writing was executed, or subsequently by the consent of the parties to be affected thereby, and without some evidence to this effect, the jury cannot on a bare inspection of the paper determine at what time the alteration took place.

Here, the plaintiff declared on the note, as payable the 25th day of December, 1840; profert is made of it in the writ. It is not denied on oath, as altered to be the act and deed of the defendants. They have therefore under our statute absolved the plaintiff from the necessity of proving it. Our brother Warren who tried the cause, placed the note in the hands of the jury; and we think committed no error in doing so.

His judgment must therefore be affirmed.

Tinsley vs. Beall.

No. 17.-Green Tinsley, plaintiff in error vs. WILLIAM S. Beall,

defendant in error.

[1.] The maker of a promissory note, in an action by the indorsee who received it after

due, cannot set off a demand against the payee, unless such demand is connected with, or grew out of, the original transaction for which the note was given, or attaches

to the note itself; he cannot set off a demand arising out of collateral matters. [2.] To authorize a defendant to set off a demand under the 24th section of the Judiciary

Act of of 1799, such demand must be against the plaintiff' in the action.

Action by indorsee against maker, and set-off against payee, pleaded. From Baker Superior Court. Tried before Judge WARREN, in December, 1846.

For the facts of the case, see the decision of the Supreme Court.

Peter J. Strozier, for the plaintiff in error, insisted that a note transferred after due, is subject to all the defences that it would be in the hands of the payee, and in such case the holder is in no bet· ter condition than the payee was before the transfer; and cited the following authorities:

Brown vs. Davis, 3 T. R. 80; Puller and others, assignees gc. of Forbes et al. vs. Roe and others, bankrupts, Peake R. 197; Crawford, admr. vs. Beall, admr. Dudley Geo. R. 204; Green admr. vs. Hatch & Hatch, 12 Mass. R. 201; O'Callagan vs. Sawyers, 5 John. R. 118; Driggs vs. Rockwell, 11 Wend. R. 504; Briggs vs. Johnson, 5 Wend. R. 342; Tuttle vs. Beebe, 8 John. R. 152; Ford vs. Stuart, 19 John. R. 342; Metzgar vs. Metzgar, 2 Rawle. R. 121; Barrington on Set-Of, 2; 3 Esp. N. P. R. 104; 6 Cranch, 203.

WILLIAM H. CRAWFORD, for the defendant in error, relied on the following authorities :

In an action by the transferee of a negotiable note, (transferred after due,) against the maker, the defendant cannot plead, as a set off against the plaintiff, a debt due to him by the payee. Story on Bills, 244; Chitty on Bills, 220; 10 Barn. & Cress. R. 558; 5 Cowen R. 236; 6 Cowen R. 693; Prince Dig. 425.

Tinsley vs. Beall.

By the Court — WARNER, J. delivering the opinion.

In this case the plaintiff, William S. Beall, instituted his action of assumpsit against the defendant, Green B. Tinsley, on two promissory notes made by him, payable to one B. M. Griffin or bearer, for the aggregate sum of eleven hundred and sixty-six dollars. The payee,

B. M. Griffin, transferred said notes to the plaintiff by indorsement, after the same became due. The defendant plead that Griffin, the payee of the note, was indebted to him a large amount on open account, a bill of particulars of which is attached to his plea, and claimed the right to set off the same against the plaintiff. At the trial the Court below ruled out his plea of set-off, on the ground that it did not relate to the original consideration of the notes; to which decision of the Court the 'defendant excepted, and now assigns the same for error in this Court. It is contended, on the part of the plaintiff in error, that Beall, the indorsee of [1.] the notes after they became due, took them subject to all the equities which existed between the original parties, and therefore he had the right to set off his account against him. It is true the plaintiff took the notes subject to all the equities which existed between the original parties growing out of the contract of which the notes were the evidence, such equities only as attach on the notes themselves or grow out of that particular transaction, but not to claims arising out of collateral matters having no connexion whatever with the notes, as the account exhibited in this case, which does not appear to have any relation to the notes whatever. Story on Bills, 244, sec. 220, Id 208, note; Burrough vs. Moss, 10 Barn. f Cress. 558; 21 Common Law R. 128. In this case Bayley, Judge, who delivered the judgment of the Court, says, “the impression on my mind was that the defendant was entitled to the set-off; but, on discussion of the matter with my Lord Tenterden and my learned brothers, I agree with them in thinking that the indorsee of an overdue bill or note is liable to such equities only as attach on the bill or note itself, and not to claims arising out of collateral matters.”

Can the set-off be allowed under our Statute of 1799? It [2.] is declared by that act “in all cases of mutual debts and sets-off, where the jury shall find a balance for the defendant, such defendant may, and shall, enter up judgment for the amount, and take out execution in such manner as plaintiffs may do by this act; and where the plaintiff shall be indebted to the defendant on open

Tineley vs. Beall.

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account for dealings between themselves, and where the defendant shall hold and possess in his own right, by assignment, indorsement or otherwise, according to law, any bond, note, bill, or other writing for money, or other thing of the said plaintifs, such defendant shall, and may, offer the same as sets-off, and on due proofs shall be allowed the same.”

This act it will be perceived contemplates an indebtedness by open account of the plaintiff in the action, or where the defendant shall hold a note, bill or bond of the plaintiff', the defendant shall be entitled to set off the same. The account attempted to be set off here, is not against Beall the plaintiff in the action, but is against one Benjamin M. Griffin, who is not the plaintiff. That the statute contemplated the demand should be against the plaintiff in the action, we think is quite clear, from the fact that the defendant, if his demand is larger than the plaintiff's, may and shall enter up judgment for the balance, and take out execution therefor. If the demand offered as a set-off here, should be larger than the demand sued for by the plaintiff Beall, would the defendant, because he had a larger demand against Griffin, be entitled to a judgment for the balance against Beall who owes him nothing? It is the plaintiff against whom the judgment is to be rendered for the balance, and to entitle the defendant to such judgment, he must have either an open account against such plaintiff for dealings between themselves, or hold in his own right according to law, a bond, bill, note, or other writing for money, of the plaintifa's, for an amount greater than the plaintiff's demand. The same view has been taken of the statute allowing sets-off in the State of New York, (which is similar to ours) by the courts of that State. IV heeler vs. Raymond, 5 Cowen R. 231; Johnson vs. Bridge, 6 Cowen R. 693. To authorize the set-off then, independent of the statute, on the ground that the plaintiff took the note after due, and therefore took it subject to all the equities which existed between the original parties, such equities only are to be understood as grow out of the transaction or contract for which the note was given, or attach to the note itself, and not to claims arising out of collateral matters having no connexion with the note sued on.

To authorize the set off under the statute, the demand sought to be set off must be against the plaintiff in the action.

The demand which the defendant in this case seeks to set off, having no connexion with the note or its consideration, and not being against the plaintiff in the action, cannot be allowed. The indgment of the Court below must therefore be affirmed.

Dennard & Alexander rs. The State of Georgia.

No. 18.-Green L. DENNARD & John ALEXANDER, plaintiffs in

error rs. THE STATE OF GEORGIA, defendant.

[1.] The condition of a recognisance or bond to appear and answer to a criminal

charge, at a given term of the court, is not fulfilled by being present at that term. The condition of such a bond is not fulfilled by appearing and answering to the charge by pleading to it. But the accused must be and appear at the first term and continue to appear until he is permitted to go by leave of the court had; or until he is acqnitted or otherwise legally discharged; or if convicted, until sentence is passed; in order to the fulfilment of the obligations of the bond and the release of

the securities. [2.] A recognisance or obligation to appear and answer to a criminal charge, attested

only by one not being a magistrate, not a recoguisance technically, but good as a bond.

Scire Facias upon forfeited recognisance. From Baker Superior Court. Tried before Judge Warren. November Term, 1846.

For the questions made and determined, see the opinion of the Supreme Court.

STROZIER & STURGIS, for the plaintiff in error, cited i Chit. Crim. Law, 106; 1 Bacon Abr. ( Bail in criminal cases) 361; 2 Hawkins Pl. Cr. 177, 178; Miller vs. Stewart, 9 Wheat. R. 180; 4 Taunt. R. 593; Theobald on Prin. and Surety, 44, s. 83; 3 Tom. L. Dic. 297; Schley's Dig. 138, 140, 211.

McCay representing PATTERSON, Solicitor General, for the State.

By the Court - NISBET, J. delivering the opinion.

The proceeding in the Court below in this case, was a scire facias, to charge the plaintiffs in error as security for one McIver, on his recognisance to appear and answer to a charge of playing at Faro. The record discloses that said McIver, together with one Hatsfield, and several other persons, were jointly indicted under our statute for playing at Faro—that Hatsfield and McIver were alone arraigned, and pleaded not guilty; and that the jury upon the trial returned a verdict of not guilty as to Hatsfield, and as to McIver, returned the following verdict, to wit: “We the jury find the defendant guilty." Upon the return of the scire facias, the Solicitor General moved to enter up judgment against the defendants, and upon the trial, tendered in evidence the bill of indictment

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