delivered the opinion of the Court:
With his plea of the general issue defendant gave notice-of two distinct defenses to the note or due-bill — first, set off; and, second, release—neither of which he succeeded in maintaining before the jury to whom the cause was submitted. On February 17, 1865, plaintiff bought of Kail a tract of land, paying in cash $600, and gave his four promissoiy notes, payable in one, two, thx-ee, and four year’s, each for the sum.of $300, for the x-esidue of the pui’chasemoney. When the fix’st xxote became due, plaintiff paid a part of it. The title to the land became involved in litigatioxx. It was for that reasoxx plaintiff refused, oxx denxaixd made by Kail, to make aixy further paymexxts, until the title should be established in him. On his refusal to pay his-note, Kail borrowed of plaintiff $300, axxd gave his due-bill for it with defexxdant as security. It is upon that ixxstrumeixt this actioxx was brought. Shortly after this money was box-rowed, Kail transfer-red to defendant two of plaintiff’s notes which he had givexx him for the land, to indemnify him as security on the due-bill to plaintiff. That was doxxe without the knowledge or coxxsent of plaintiff, and was a matter of mere private arrangement betweexx Kail axxd defendaixt.
The burden of proving the defenses insisted upon of course rested upon defendant, and this he has xxot done by any preponderance of the evidence. Thex*e could be no set-off, for the reasoxx the coxxsideratioxx of the notes which defendant held had wholly failed; axxd this fact, it seeixxs, was well known to defexxdant when he received them of' Kail. Neither Kail nor defexxdant could enforce them against plaixxtiff. Axxd whether defendaxxt was released from his obligation oxx the due-bill which is the subject of this action, in consideration he would save plaintiff harmless oxx. the notes he had given Kail for land, the title to which ultimately failed, was a question of fact which the jury have found against defendant, and we do not see how we can disturb the finding. The instructions given were sufficiently accurate not to have misled the jury on the issues involved, and as the evidence was quite conflicting, the verdict, under the practice that prevails in this court, must stand.
The judgment will be affirmed.
Judgment affirmed.