delivered the judgment of the court. The defendant resists the application, relying principally on this; that he holds, to nearly the amount of the plaintiff's demand, a note against him due on the 8th oi [*515] September *last, which he intends to set off. The object of the plaintiff’s motion is, if possible, to exclude this effect; on this ground, that his demand is assigned for the benefit of certain persons who have paid debts for him, incurred by endorsements to his compounding creditors. The defendant denies notice of such assignment ; both parties admit the insolvency of the plaintiff. The verbal agreement between the attorney for the plaintiff and the defendant cannot be attended to; a rule of this court forbids such' agreement being alleged.
There has been loches on the part of the plaintiff in not entertaining his suit as of August term, and to avoid that loches, the court is now applied to. In granting favors of this kind, the court ought to be careful not to do injustice, and it appears to them, that granting the rule as applied for, might have that effect; for, most certainly, the defendant’s claim to offset is better founded than that of the assignees to recover. Let a rule be entered, that the plaintiff have leave to file his writ, and enter the defendant’s appearance, as of the last term.
Thompson, J.I am sorry to be under the necessity of differing from the court; but I think the endorsement of appearance is evidence of an agreement as strong as if it had been reduced to writing, and sufficiently indicatory of the intent of the parties, to avoid any of the consequences, against which the rule in question was framed. How far the defendant may, by filing the copias, and entering an appearance of August term, be precluded from a set-off or by the present rule entitled to it, is unnecessary to determine. My opinion is, that the plaintiff ought t<? nave the effect of' his motion.