Ebenezer Snow vs. Seth Conant, 8 Vt. 301

The opinion of the court was delivered-by Royce, J. The object of the evidence offered was to impeach the defendant’s title to the notes pleaded in offset, by showing a want of consideration for their endorsement by Harding. This line of defence to the declaration in offset, seems to be somewhat inconsistent with the plaintiff’s plea, which impliedly admits the validity of the endorsements by Harding to the defendant, and appears to present merely the question of priority between the notice given by the plaintiff to the defendant and Thomas Conant, and that given by the defendant to Allen.

But since the’defendant’s title as endorsee of Harding has been treated at the bar as properly involved in the case, it will be so considered. The words value received are not essential to the validity of an endorsement, in order to pass the legal property and^right of action to the endorsee, so long as no terms are employed which tend to negate or restrict his right, as by directing payment to be made to the endorsor’s use, or to the use of a third person. In this instance, there is the usual direction requiring payment to¡the defendant, without the addition of any terms going to limit or qualify his interest.

The endorsements of themselves therefore establish a prima facie right in the defendant, not only as against Allen, but for the purpose of the offset claimed. Whatever right of defence Allen might still have, by showing illegality in the consideration of the endorsements, as proving them founded on a gaming, usurious, or other prohibited consideration, he could not defend himself on the ground of a mere want of valuable consideration for the endorsements, in the absence of illegality and fraud.

It follows that the evidence offered on trial would have furnished no protection to Allen against a suit by the defendant as endorsee of the notes. But it is insisted that a proper construction of our statutes for allowing offsets will render the evidence available to the plaintiff. though it might constitute no defence for Allen. And it must be admitted that the statutes should be extended to those .claims only which the party may legally enforce in his own name, and apparently in his own right.

Hence it has never been permitted, that a demand accruing to a person in any official or representative character should be set off against his own private debt, or vice persa. This has long been settled in reference to sheriffs, executors aid administrators, and persons in like situations. It is not perceived, however, that the present case should be classed with those alluded to. There is nothing in the situation of the defendant, by which he can be said to be claiming in auter droit; and much less does any thing of this kind appear upon the face of his declaration, or in the evidence adduced to support it.

And whether he is regarded as an absolute purchaser in his own right, according to the import of the endorsements, or as a purchaser with the privilege of rescinding the purchase in a certain event, the result, for the present purpose, must be the same. In either case he is invested with the apparent property in the notes, and the legal right of action upon them, to be asserted for his own benefit. The evidence proposed would therefore seem to be equally unavailing to the plaintiff as to Allen. There is’another view of the subject, which also appears to be decisive.

It has already been shown that the defendant had acquired”a right of action in his own name against Allen, which the latter had no means of defeating. And after the requisite notice, which the defendant gave, Allen had as little pretence for resisting the offset now sought; for it would be a strange construction of the statute which should enable him to avoid an offset of the notes in favor of the person who could successfully prosecute them in a distinct action. A declaration in offset is substantially an action pe? culiar in nothing but the form of proceeding.

But if the right of claiming the offset existed against Allen, it must also exist against the plaintiff, when he comes forward to prosecute the defendant’s note given to Allen, and to which the offset was applicable. No principle is discovered which would justify the offset in one case and forbid it in the other. As the evidence offered would have been unavailing in its influence upon the case, it was properly rejected. There is also a motion for judgment to be entered for the plaintiff, notwithstanding the verdict.

This is founded on the alleged want of mutuality between the note sued and those pleaded in offset. The plaintiff declared against Thomas Conant as well as the defendant, and his writ issued against both ; but Thomas became severed from the cause by a return of non esi inventus as to him. It appears by the case of Molt vs. Mott, (5 Vt. R. 111,) that had the notes been endorsed to the defendant and Thomas Conant, the defendant might have pleaded them in offset in the joint names of both.

The court there say, “ To give effect to this statute, we think that those persons may be considered defendants against whom the writ issued.” And again — “ Whether the defendant (in court) could also have plead in offset a sum due to him alone, is not a question now before us; and we only remark, that if he has this double advantage, it must arise from the peculiar situation of the case.” It is evident that the court did not intend to conclude the present question. And treating the matter as undecided, I must regard the present offset as more directly within the statute than the one there permitted.

The right of pleading in offset is given to the “defendant,” and Seth Conant is the only defendant in court; as such, he comes within the words of the act. The decision in the case referred to, was the result of that enlarged and favorable construction, to which a highly beneficial statute is always entitled. It may be further remarked, that a motion of this kind is necessarily founded on the record alone; as when, according to English practice, the postea is sent from Nisi Prius to the court in bank. It can never depend on any state of evidence which is not disclosed by the record.

Here the record shows the general issue mutually pleaded, and a verdict that the defendant is not in arrear.— But whether this result was produced by a failure of the plaintiff to establish a right of recovery on-the note sued, or by the allowance of the offsets, does not conclusively appear of record. Judgment of county court affirmed.