
    Henry v. Scott.
    Debt by tbe assignee of promissoiy notes against tbe mater.' Plea, that after the assignment, be bad paid the notes to the payee, with tbe assent of tbe plaintiff, in goods, <fec. Issue on tbe plea. Held, that general evidence of tbe delivery of goods, &e., by tbe defendant to tbe payee after the assignment, was admissible to go to tbe jury.
    In a suit by the assignee of a note against tbe maker, tbe latter may plead and prove that the plaintiff bolds tbe note merely as a trustee of tbe payee, in order to let in as a set-off an indebtedness of tbe amtor to tbe defendant.
    
      Thursday, June 3.
    ERROR to the Ohio Circuit Court.
   Perkins, J.

Debt by William Henry against John Scott. The suit is upon notes given by said Scott to one Horace Brown, and by him assigned to the plaintiff. To the special counts upon the notes the defendant pleaded that he had, after their assignment, paid said notes to Brown, the payee, with the assent of the plaintiff, the assignee, which payment was made in goods, &c. There were three pleas substantially alike. The plaintiff replied, that the defendant had not, with his assent, paid said notes to the payee, &c. Issue. The common counts were appended to the declaration, and the general issue pleaded to them, but no question arose on the trial except those under the issues growing out of the special counts.

The cause was submitted to a jury; and the defendant having given evidence in support of his pleas of payment tending to show that Henry, the plaintiff, had directed him to pay the notes to Brown, and that he had delivered money, &c., to Brown, the plaintiff called a witness and propounded to him the following questions, viz.: what do you know of Horace Brown letting John Scott, the maker of the notes, and defendant to the suit, have a wood-boat? If any thing, when was it? What was said boat worth ? Tell all about it. Also, what do you know, if anything, about Horace Brown's son working for said John Scott? If anything, when was it? How long did he labor for him, and what was his labor worth? Which questions the Court would not suffer the witness to answer, on the ground that they were irrelevant.

We think the Court erred in refusing to suffer the witness to testify.

The defendant pleaded that he had paid the notes to Brown, by the permission of Henry, after their assignment to the latter, by the delivery of money, goods, &c., to said Brown. Such payment was a good defense. Payment of the amount of the notes to another by the direction of the plaintiff, was, in legal effect, a payment to him. The plaintiff replied that the defendant had not so paid the notes. This was the question for trial. Now, when the defendant had proved that he had delivered money and goods to Brown, the question arose, for what purpose, or on what account were they so delivered? This question was for the. jury; and to enable them to rightly determine it, it was necessary that they should hear all the evidence in relation to the matter; and it seems to us that it was relevant for the plaintiff to show that the defendant, Scott, was indebted to Brown for other considerations than the notes, on which, the jury might, perhaps, infer, from the evidence, the money and goods were delivered and not in payment of the notes.

There was some evidence tending to show that the plaintiff, Henry, held the notes by assignment, simply as trustee for Brown. If he did so hold them, the defendant had a right to plead and prove that fact, as a ground for being permitted to set off, against said notes, any indebtedness of Brown to him. Forkner et al. v. Dinwiddie, in this Court, November term, 1851 .

D. 8. Major and A. Brower, for the plaintiff.

D. Kelso, for the defendant.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c. 
      
       See ante, p. 34.
     