
    Gould against Chase.
    Where tii» defendant,having executed a promissory note, after-wards promises the assignee of the note to pay it, he cannot, in an action brought on the note, by the assignee in the name of the payee, set off demands which he had against the nominal plaintiff prior to the making of the note, merely upon proving those demands, without farther explanation, as it is to be presumed from the fact of his subsequently giving a note, coupled with his promise to the assignee to pay it, that the subject of the set-off had been previously satisfied.
    IN ERROR, on certiorari to a Justice’s Court.
    This was an action upon a promissory note not negotiable, executed by the defendant in error, who was, also, defendant in the Court below, to the plaintiff in error, in whose name the suit was brought, but for the benefit of one Hos-kins, the assignee of the note. The note was dated the 28th of December, 1813, for 25 dollars, payable three months after date, with interest. The note was assigned before it fell due, and the defendant, before it became payable, called at the store of Hoskins, and asked if the note was in his hands, and on its being shown to him, said, that he was not ready to meet it then, but that he should be down in a short time, when he would settle it. The defendant offered to set-off a note given by the plaintiff to one S. or hearer, dated the 10th of December, 1810, for one dollar and 33 cents, and also, a memorandum in his book of accounts, dated the 27th of May, 1811, and signed by the plaintiff, by which he admitted, that there was then due from him to the plaintiff, the sum of 63 dollars, and 48 cents. This set-off was, on proof of the plaintiff’s handwriting, admitted, and the Justice rendered judgment for the defendant for the costs.
   Per Curiam.

The note which was allowed to be set-off, ■was given by the plaintiff three years before the note on which the suit was brought, and the settlement between the parties took place about a year and a half afterwards. The question is, whether, under the circumstances of this case, the demands exhibited by the defendant ought to have been considered as due to him from the nominal plaintiff. In the absence of all explanation, the giving of the note in ques-lion, is prima facie evidence, that these demands had been satisfied; but when to this fact is added the testimony, that the defendant promised to pay the note when it was shown to him by Hoskins, after the assignment, the presumption that the demands offered as a set-off, had been previously settled, is not to be resisted.

Judgment reversed.  