9 Me. 83 | Me. | 1832
delivered the opinion of the Court.
We are satisfied that the declarations of Moses Shirley, the payee of the order, while the interest was in him, are admissible in evidence. No time' was limited in the order, within which it was to be paid. It was then payable presently ; and not being indorsed until three years after its date, the defendant is entitled to the same defence, as against the original payee. Ayer v. Hutchins, 4 Mass. 371. To him the plaintiff has succeeded, and by his admissions, while he was the holder, the plaintiff is bound. Peabody v. Peters, 5 Pick. 3, and Sergeant v. Southgate, 5 Pick. 312, were actions upon negotiable notes, brought by the plaintiffs as indorsees; but in both the declarations of the payees before the indorsment, were received. Before this order was indorsed, the defendant was not indebted to the holder, he having demands against the payee, by which it was overbalanced. Neither then is he indebted to the plaintiff, against whom he has the same defence. But it is insisted that in order to avail himself of it, he should have filed his account in offset. In Holland v. Makepeace, 8 Mass. 418, Sedgwick J. by whom the opinion of the court was delivered, was of opinion that an account could be filed only between the original parties. And this seems to be taken for granted in Peabody v. Peters. But in the latter case, Parker C. J. maintains, with great strength of reasoning, that if such be the law, the defendant may avail himself of his offset, without filing it. ■ There might be great