
    Say vs. Dascomb.
    In a suit by an assignee of a note not negotiable, brought against the maker in the payee’s name, the defendant, under pleas of payment and of a set-off, gave in evidence a receipt in full as to the note, and also a note against the payee: Held, that the plaintiff, under general replications denying these pleas, could not prove tire defendant’s receipt and note to have been obtained by him alter he had been duly notified of the transfer of the demand sued on; but to render these facts available, the replication should have been special.
    If the defence of payment had arisen before the transfer of the note sued on, and the assignee had taken it on the faith of the defendant’s representation that it was good, he would have been estopped from setting up the payment; and in such case, semble, the facts constituting the estoppel might be shewn under the general replication.
    Motion to set aside the report of a referee. Declaration in assumpsit—common money counts—with the copy of a note annexed. Pleas, 1. non-assumpsit; 2. payment, and 3. set-off—all in the usual form. Replications denying payment and ’ set-off, in the usual form. The plaintiff gave in evidence a promissory note, not negotiable, dated September 25,1838, by which the defendant promised to pay the plaintiff $100, six months after date.
    The defendant thereupon gave in evidence the plaintiff’s receipt dated the 26th Sept. 1838, by which he acknowledged the payment of $100 ih full of the note. He also gave in evidence, as a set-off, a note made by the plaintiff on the 15th Sept. 1838, for $200—payable to G. G. or bearer on the first of February, then next, with interest.
    The plaintiff then offered to prove that on the 26th of September, 1838, one De Witt Cuddeback agreed to sell the plaintiff a horse for the sum of $100, to be paid for in, the defendant’s note on which the action was brought, provided he ascertained the note was good: that Cuddeback thereupon went to the defendant with the note, informed him of the bargain, and inquired if the note was good, to which the defendant replied that the note would be good to Cuddeback if the plaintiff would sign it over: that the bargain was thereupon concluded, and the plaintiff signed over the note to Cuddeback, who, on the same 26th September, 1838, gave the defendant notice of the assignment. The plaintiff further offered to prove that Cuddeback afterwards assigned the defendant’s note to J M. Church, and that this action was brought for his benefit in the plaintiff’s name. The defendant objected that this evidence was inadmissible under the pleadings, and it was rejected by the referee.
    The plaintiff also offered to prove, that the defendant purchased the $200 note, which he proposed to set off, after the defendant’s note had been assigned to Cuddeback and the defendant had had notice of the assignment. This evidence was also rejected, and the referee reported in favor of the defendant for the amomit due on the note offered as a set-off.
    
      J. R. Lawrence, for the plaintiff, now moved to set aside the report.
    
      F. G. Jewett, for the defendant.
   By the Court, Bronson, J.

On the facts offered to be proved there can be no doubt that the defendant is bound to pay the note on which the action is brought, either to Cuddeback, the first assignee, or to Church, the present holder; and that while necessarily suing in the plaintiff’s name, they should be protected against his acts done after notice to the defendant of the assignment. So also they should be protected against a set-off of the plaintiff’s note, which the defendant purchased after notice of the assignment.

But there is a difficulty upon the pleadings. The plaintiff, instead of taking issue on the plea of payment, should have replied the assignment and notice; and there should have been a like replication to the plea of set-off, instead of a general denial of the matters alleged in the plea. I am not aware that this point has been directly adjudged; but in all the cases I have noticed, when a defence as against the nominal plaintiff has been pleaded, the replication has been special, setting up the assignment and notice. In Littlefield v. Storey, (3 John. R. 425,) one of the pleas was payment. " In Raymond v. Squire, (11 John. R. 47,) a release was pleaded ; also, an accord and satisfaction. In Dawson v. Coles, (16 John. R. 51,) there were pleas of payment, release, and a. former suit and recovery by the plaintiff. In Briggs v. Dorr, (19 John. R. 95,) a release was pleaded; and there was a like plea in Wheeler v. Wheeler, (9 Cowen, 34:) and in Wheeler v. Raymond, (5 Cowen, 231,) satisfaction was pleaded. In each of these cases the replication was special, stating an assignment and notice before the defence set up by the plea arose, and averring that the action was brought in the name of the nominal plaintiff for the benefit of the assignee.

This should be so upon principle. When the plaintiff cannot gainsay the plea, he should confess and avoid it. In this way the defendant will have an opportunity to answer the matter on which the plaintiff intends to rely, and an issue will be formed upon the very point in dispute between the parties. To this point the proofs must be confined on the trial. It is an elementary principle, that no evidence is admissible which does not tend either to prove or disprove the issue which has been joined between the parties. This rule admits of very few exceptions, none of which touch the present case. The issues to be tried here were, 1. whether the defendant made the note on which he was sued; 2. whether he had paid the note to the plaintiff; and 3. whether he had a set-off against the plaintiff. The defendant proved the two last of these issues, and the plaintiff did not offer to controvert that proof. He did not on the trial, as he did by his replications, deny either that the plaintiff had been paid, or that the defendant had a set-off against him ; bút he proposed to set up new matter, for the purpose of showing that, although the pleas were true and the replications false, the defendant ought not to avail himself of the defences which the pleas set forth. This was not within the issues upon which the parties went to trial, and the evidence was properly rejected.

If the defence of payment had arisen before the note was transferred, the defendant would have been estopped from setting up the payment as against the assignee, because the latter, parted with his property and took the note on the faith of what the defendant had told him. (Foster v. Newland, 21 Wend. 94.) And then, perhaps, it would not have been necessary to reply the special matter. (Welland Canal Co. v. Hathaway, 8 Wend. 480.) But it is unnecessary to decide that point, for I infer from the case that the payment was made, not only after Cuddeback had made enquiry, but after he had taken the note and given notice to the defendant. It is, then, the common' case, and the plaintiff should have replied the assignment and notice, instead of denying the truth of the pleas.

Cowen, J. dissented.

Motion denied.  