delivered the opinion of the court.

This suit was brought on a writing obligatory for the sum of five thousand two hundred and sixty-six dollars seventy cents, dated the 8th of June, 1838, payable at eight months, made by the defendants and one Graves. It appears by the evidence that the banking company of McEwen, King & Co., were the real payees of the writing obligatory, although it was made payable to the Northern Bank; that it was so made payable with the consent of the obligors.

The defendants pleaded payment, and filed as an off-set a bill of particulars of sundry notes of McEwen, King & Co., and certificates of deposits, payable to various persons. The defendant Curtis withdrew his plea and suffered a default, but the issue Was tried and found in favor of Kyle. A new trial was moved for, and refused, and a bill of .exceptions taken. The principal question raised for our determination, is as to the admissibility of the set-off.

When the notes and certificates of deposit of McEwen, King & Co. were offered, the plaintiffs’ counsel objected, because there was *363no evidence that Kyle was the owner of them at the time the suit was brought, they being payable to other persons than Kyle, and indorsed in blank. But the court admitted them as a set-off without any evidence showing when Kyle became the owner.

There can be no doubt that when a note or other liability of the payee of a note, is attempted to .be set-off by the maker of the note on which suit is brought as against the assignee, such set-off cannot be allowed, unless it also appears that the defendant was the owner of such set-off at the time he received notice of the assignment. Barbour on Set-Off, 63. Our statute allows all offsets which accrued or were held by the maker before notice of assignment, but it does not allow offsets subsequently acquired. These notes and certificates were not payable to Kyle, but he acquired them by indorsement, and as they were not offsets as against the assignees, unless he held them when he received notice of assignment, it devolved on him to prove that he did s:> hold them. Not being payable to him, they were not apparent offsets, and it was for him to show that he received them in time. It was not for the plaintiffs to prove that they were not good offsets. The rule of law is the same, whether the suit be brought in the name of the assignee, or in the name of the original payee for his use. There was no proof as to the time when notice of the assignment was given. In the absence of other proof of that fact, the bringing of the suit is to be regarded as notice, and the plaintiffs only required proof of ownership of the set-off at the time suit was brought, and this they were entitled to. There was not only no proof establishing the sufficiency of the set-off, but there was proof which tended strongly to establish its insufficiency. The note was taken by the plaintiffs’ attorney to Kyle on the 4th of July, 1839, to ascertain whether he had a defence, before it would be received. Kyle answered that he had a defence, but had not determined whether he would set it up, and also declined telling what it was. He stated that if he did not determine to set it up that he did not wish it spoken of, as it was of such a nature that it might implicate other persons who stood fair in society; but mentioned no other defence, and told the witness that if he would not sue, he would try and get property from Graves, the principal obligor, but that if suit was brought he would resist *364it to the last. Suit was brought on the 13th of July, 1839, which was but nine days after this conversation. This conversation, it is true, can only lead to conjecture, but it leads to a conjecture of the existence of any other defence sooner than a set-off. We cannot imagine that an off-set would have been concealed from such a motive as that mentioned.

This is the only question which is deemed of any consequence in the case.

Judgment reversed and new trial granted.