delivered the opinion of the court.

This case comes up by appeal from the circuit court of Claiborne county.

It was brought into the said court, by an appeal from the judgment of a justice of the peace. In that court appellant plead non assumpsit and payment in the usual form, and to the latter appended a notice to appellees’ attorney as follows: “ The receipt of Ater Davis, clerk,' for costs paid on account of Man &s Moody, will be offered in evidence upon the trial of the above.” Appellees took issue upon both pleas. Upon the trial appellant offered in evidence a receipt of the kind above described, dated the 23d day of November, A. D., 1840, which was the same day upon which the summons from the office of the justice of the peace in this case was served upon him. He also offered a statement of what was intended to be proven in connection with this receipt. The court below refused to permit the receipt to be read to the jury.

There does not appear in the statement just referred to, or elsewhere in the record, an essential ingredient to the competency of a claim in set-off. It must always be shown that the *535defendant was the owner, and held possession of the set-off at the period when he received notice of the assignment. This likewise devolves on the defendant, for as he stands in the light of a plaintiff in a cross action, the burden of proof rests upon him. The service of the writ or summons, where other proof of it does not appear, must be received as such notice. In the case of the Northern Bank of Mississippi, use, &c. v. Kyle & Curtis, decided at the January term, A. D. 1843,' of this court, this doctrine was fully recognized. It appears by the record that the service of the summons from the justice of the peace, and the acquisition of the set-off by defendant, occurred upon the same day, without it appearing which had priority in point of time on that day. It was the business of the defendant to have made clear and certain his legal right to have the benefit of the set-off, if he desired to avail himself of it.

The objection taken to the assignment on the ground of fraud, this court does not deem itself now called upon to investigate. The proper intermediate tribunal is open, where that subject can be regularly shaped, if necessary, to compel our decision.

The judgment of the court below must be affirmed.