O'Callaghan against Sawyer

O’Callaghan against Sawyer. Where a note is indorsed after it is due, the indorsee takes it subject to all the equity, and to every defence •which existed against it, in the hands of the original payee. THIS cause came before the court, on a writ of error from the court of common pleas of the county of Cayuga. The declaration in the suit below was on a promissory note drawn by O’Callaghan, dated the 29th March, 1803, and payable to Moses Sawyer, or bearer, on or before the 1st September following, for 22 dollars and SO cents, with interest. The payee, on the 10th March, 1808, the note and interest being unpaid, indorsed the note to the plaintiff, in a fair course of trade. Plea, non assumpsit. There was a verdict for the plaintiff below, for 31 dollars and 6Ó cents, damages, and 37 dollars and 15 cents, costs. The bill of exceptions stated, that the defendant below added a notice to his plea, that he would give in evidence at the trial, that Moses Scrwyer, before the indorsement, was indebted to the defendant in 600 dollars, for money lent, and laid out and expended, and for work and labour, and for goods sold, and for money' had and received to the use of the defendant, and for, the use and occupation of land for three years; and also, that the plaintiff was indebted to him in the like, sum for the like charges, except the use and occupation. That at the trial, the plaintiff proved the note and indorsement ; and the defendant, to prove the set-off,, offered to prove goods sold to Sawyer before the indorsement of the note; but the court below overruled the testimony, and declared, that evidence of any demand existing in favour of the defendant against Sawyer, pre-vious to the indorsement, was improper. Kellogg, for the plaintiff in error, cited 1 Johnson's Cases, 57. 2 Caines, 372. 1 Johns. Rep. 319. 3 Johns. Rep. 263. 3 Term Rep. 81. 1 Term Rep. 619. Kyd on Bills, 181. Richardson, contra, cited Laws of N. Y. vol. 1. p. 347. 24 sess. c. 90. [MAJORITY — .Per Curiam.] .Per Curiam. The set-off ought to have been received. The note had long been due and dishonoured, when it was indorsed; and the point has been too long settled, and too repeatedly recognised, to require any discussion now, that the indorsee took the note, subject to all the equity, and to every defence which existed against it, in the hands of the original payee. (2 Caines, 372. 1 Johns. Rep. 319. 3 Term Rep. 80.) The judgment below must be reversed. Judgment reversed,