
    James M. Smith et al., Respondents, v. Wilson G. Fox, impleaded, etc., Appellant.
    (Argued September 28, 1871;
    decided January term, 1872.)
    Action upon a promissory note, dated March 3d, 1866, payable sixty days from date, executed by defendants and discounted by one Edward S. Rich, an individual banker. Plaintiffs claimed title by virtue of an assignment for the benefit of creditors, executed by Rich, April 12,1866. At the time Fox had a balance to his credit on deposit account with Rich to more than the amount of the note. Defendants asked to have sufficient of the account to balance the note set off against it. This the court refused. Held, error, on authority, of the case of Smith v. Felton 43 FT. Y., 419).
    
      Sarmiel Hand for the appellants.
    
      John Ganson for the respondents.
   Gteay, C., reads for reversal.

All concur.

Judgment reversed and new trial ordered, costs to abide event.  