By the Court.

delivering the opinion.

[1.] The error assigned in this caséis, the refusal of the Court to charge the Jury as requested, and to the charge as given to the Jury, by the Court. According to the facts, as exhibited by the re-cord, the Court below did not err in refusing to charge as requested; for the reason, there was no evidence that the defendant had any *591demand which he was entitled to set-off against the note sued on. The defendant had withdrawn his plea of set-off. This Court has repeatedly ruled, that the defendant could not, in a suit on a negotiable note, question the title of the plaintiff, unless it is made to appear that it is necessary for the purpose of his defence. Nisbet vs. Lawson, 1 Kelly, 275. Field vs. Thornton, Ib. 306. Hall vs. Carey, 5 Geo.Rep. 239. Here, there was no evidence that the defendant had any defence to the note, by way of set-off, or otherwise. There was no error in the charge of the Court to the Jury.

We have been requested to certify in this case, that in our opinion it was nottaken up for delay only, so as to avoid the damages given by the Statute. We find nothing in this record which will authorize us to give such a certificate. This Court has decided, at least in three several cases, that the defendant could not question the title of the plaintiff to the note, unless it was necessaiy for his defence. The defendant assumed in his request to the Court to charge the Jury, that he had a defence- to the note, by way of set-off, when in point of fact, he had voluntarily withdrawn his plea of set-off, and stood before the Court without any legal defence whatever, so far as the record shows, and the legal presumption is, that which does not affirmatively appear, does not exist.

The object of the Statute was to prevent delay,' and if parties will bring up their cases to this Court, for that purpose alone, they may expect to pay the penalty awarded by it. Let the judgment of the Court below be affirmed.