The only question raised by the exceptions, is that of the set-off of the note signed “ Roberts and Plaisted.” The specification of defence was that the note sued by the plaintiff, was not indorsed to him by the payee till the instalment of July 1st, 1850, was overdue. The instructions of the court are therefore to be regarded as if the suit were brought by George Roberts. Indeed; the ruling of the court was, that the note signed Roberts and Plaisted, as then held by Williams, was not the subject of a set-off as against Roberts.

The first question is, was Roberts severally liable on the note filed as set-off. The note is in terms joint and several. It is signed Roberts and Plaisted, and that signature was made by Roberts. It may well be doubted whether this form of note made Plaisted severally liable, but this question we do not feel it necessary to determine. It is enough that *110Roberts was severally liable on the note; that the note is his own act, the effect of which he would be estopped to deny.

As against Roberts then, or this plaintiff, if he received the note sued, when the instalment was overdue, this note signed Roberts and Plaisted, was a proper subject of set-off, unless the purchase of it by the new firm of Williams and Plaisted operated as a. payment, so that it could not be afterwards transferred to the defendant. What the plaintiff offered to prove, and introduced evidence tending to prove, was that the note filed in set-off was purchased of the payee Packard, by the firm of Williams and Plaisted, and was, afterwards, but before July 1st, 1850, when the instalment sued for became due, transferred to Williams the defendant. That a note once paid by the promisor, loses its vitality and cannot again be put into circulation is well settled. If this note had been purchased by Plaisted alone, on his several account, such purchase would have extinguished the note. But we see no reason for extending the rule to the purchase, by a firm of a note signed by one of its members, or by such member jointly with others. While such note remains the property of the firm so purchasing, there is a disability to sue, because the same person would be defendant and plaintiff; but this is purely technical, and upon the indorsement of the note an action may well be maintained by an indorsee not connected with the origin of the note. In the case of a note given by a firm to one of its members, such member could not sue it in his own name, but he may indorse it, and such indorsee may sue. The same technical difficulty would exist as to a note given by a member of a partnership to the firm, yet when indorsed by the firm the difficulty is removed. Little v. Rogers, 1 Met. 108 ; Smith v. Lusher, 5 Cow. 688 ; Thayer v. Buffum, 11 Met. 398.

We are of opinion that the facts stated do not show a payment of the note before it was transferred to Williams, and that it was a proper subject of set-off.

Exceptions sustained.