
    Clarke v. M'Elroy.
    ■in an action against the maker, by the bearer of a note, payable to G P. or bearer; anote of W. H. and G, payable to defendant, or h - irer, may be given in evidence as a set off, without proof of the signature of W. H. or that defendant was in possession of the note when the action was brought
    Clarke brought an action against M'Elroy, before a justice of the peace of Dallas county, on a note for §30, payable to G. Ponsonby, or bearer, dated 15th January, 1825, payable 1st of January next. The case being taken by appeal to the Circuit Court, verdict and judgement there were for the defendant, on the pleas of payment and set off.
    On the trial in the Circuit Court, the defendant offered in evidence a promissory note of Warren Hogg and George Ponsonby, for §50, dated 18th December, 1823, payable to him or bearer, on or before25th December, 18:4, and proved the signature of Ponsonby, but did not prove the signature of Hogg; or that he, the defendant, had possession of the note previous to the commencement of this suit, for want of which proof, the plaintiff objected to the note being given in evidence as a set off; the objection was overruled. He excepted and assigned this matter here as error.
    Thorington, for plaintiff.
    H. It. Perry, for defendant in error.
   JUDGE SAFFOLD

delivered the opinion of the Court.

If the note offered as a set off, had been payable to any other person, and assigned to the defendant, a different question from the present would have been presented ; but being made payable to the defendant, it cannot be presumed that after being sued, he bad obtained it for the purpose of using it as a set off; and though pat able to defendant, or bearer, it does not appear that it has ever been transferred, and it was in defendant’s posses on, when be offered it as a set off. Hogg and Ponsonby were jointly and severally bound by the note, and as. the several debt of each, it was a good set off against either. Let the judgement be affirmed.

See Pitcher and R. against Patrick’s adm’rs, Minor’s Ala. Rep. 321;.

Judge Gayle not sitting.  