
    HAMILTON v. PHELPS.
    Proof of note — setoff—giving a second note when first outstanding.
    The act dispensing with proof on notes declared on without affidavit'annexed to the plea, does not reach a note offered as a setoff — the execution of notes so offered, must be proven. Whether the giving a second note is evidence of the payment of the first, is a question of effect, not of the competency of testimony.
    Assumpsit on a note. Plea non assumpsit, without affidavit, and notice of offset of a note given by the plaintiff to the defendant.
    The plaintiff read in evidence, under the statute without proof of its execution, the note declared on, dated in 1825, payable on demand, with interest from date, and rested.
    The defendant offered to read as an offset, a note given him by the plaintiff, dated July, 1827, fora less sum than the note read by the plaintiff, payable six years after date.
    
      Matthbws and R. Hitchcock, for the plaintiff,
    objected to the admission, because no proof is offered of the execution of the note.
    
      J. H. Paine and P. Hitchcock, contra,
    insisted,
    1. The note was admissible as a setoff under the statute dispensing with proof, and
    
      2. That it was admissible- under the general issue, to prove payment of the plaintiff’s note, as the giving the second note was not in legal contemplation, payment of the first.
   Wood, J.

The statute referred to, exonerates the plaintiff from proving the execution of a paper declared upon, unless the defendant annex to his plea of the general issue an affidavit of its truth: (29 O. L. 122.) No provision is made in the law to dispense with the usual proof in any other case than the one enumerated. It is said, the same reason exists for changing the law of evidence in the case before us, as in that provided for. If it be so, the argument should be addressed to the legislature. Here the inquiry is, what change has been made? not what ought to be made in the law of evidence. The note cannot be read, without its execution is proven.

'The other point made is not now properly raised. It looks to the effect, not the competency of the evidence.

, The execution of the note was then proven and read.  