By the Court,

The principal question in this case is the one which arises upon the refusal of the circuit court to give the instructions asked for by the appellant. The court was asked to instruct the jury, that if they should find from the evidence, that the payment by the appellant to the sheriff, on the execution of L. D. Newell against L. H. Merrick, was made while Merrick was the holder and owner of the note sued upon, and before it came to the possession of the respondent, then he had a right to set off in the action, the amount thus paid by him to the sheriff. And further, if the jury should find from the evidence, that L. D. Newell, the plaintiff in the execution, had a subsisting judgment against L. H. Merrick, and that execution was issued on such judgment, and delivered to the sheriff, and that the defendant in the execution, Merrick, was the owner and holder of the note at the time the appellant paid the sheriff the amount which he owed on the note (the note being past due), that then they must find for the appellant.”

We can perceive no objection to these instructions, and think they were pertinent and proper to be given to the jury, under the facts of the case. It is obvious that the defense to the action was, that the note was paid while Merrick was the holder and owner thereof, and that it was transferred to the respondent after it was due, and subject to all equities. If, indeed, the respondent received the note when over, due, and after it had been paid, it is clear he could not maintain the suit. It is true the instructions do not assume *376that Merrick bimself, tbe then bolder and owner of tbe note, received tbe money due upon it, but that tbe appellant discharged tbe note by paying tbe amount due upon it, to tbe sheriff, who bad a valid execution against Merrick. And, we suppose, a • payment to tbe sheriff under such circumstances,would be as complete and effectual a discharge of tbe note, under sec. 90, chap. 134, R S., as though tbe money was actually paid to Merrick bimself. For that section declares that “after tbe issuing of execution against property, any person indebted to tbe judgment debtor, may pay to tbe sheriff tbe amount of bis debt, or so much thereof as shall be necessary to satisfy tbe execution, and tbe sheriff’s receipt shall be a sufficient discharge for tbe amount so paid.” Tbe appellant claims to have paid tbe note under and by virtue of this provision of law, and tbe result must be tbe same as though the money was handed directly to Merrick, it being assumed that tbe note was past due, and belonged to Merrick at tbe time. Whether tbe note did in fact belong to Merrick at the time tbe money was paid to tbe sheriff, upon tbe execution against Merrick, was, of course, a proper subject to be determined by tbe jury upon tbe evidence. There was testimony tending to establish that fact, and hence the pertinency of the instructions asked for by the appellant, and refused by the circuit court.

Tbe judgment of tbe circuit court is reversed, and a new trial ordered.