-The case of Cass v. Northrop, [I S. & P. 89,] seems to be decisive of this; indeed, the only difference between them is, that there, the making of the note offered as a set-off, was proved, but not its indorsement. Both, however, depend on the same principle, which is, that the several' statutes making writings evidence of the debt or duty promised by them,

*894unless denied oil oath, do not apply except in cases where the writing is the foundation of the action. The necessity for this distinction will be apparent when it is considered that a different rule would expose the plaintiff to the plea of a lost release or other instrument in writing, by reason of which he would fail in his action, not being present to interpose the necessary replication of non est factum, on oath. [See Parks v. Greening, Minor 178.]

Judgment affirmed.