The plaintiff declared on a promissory note, dated March 12th, 1823, payable June 1st, 1824, to Shelden Smith, or bearer. The defendant gave notice of set off of a note, made by Smith to J. A. Spencer, or bearer, payable on demand; and dated July 12th, 1825. Also a judgment obtained by the defendant against Smith, In June, 1825.
*694The plaintiff proved that he purchased the note ; and, on 2bth July, 1825, called on the defendant, demanded payment, and stated that he had purchased the note on the Saturday preceding. The defendant said he would settle or pay it. Shortly after, the defendant called at the plaintiff’s house, said he had failed to obtain money, as he expected, and wished the plaintiff not to prosecute.
The defendant offered to prove his note and the judgment as a defence. The judge rejected the evidence, on the ground, that the defendant had not set up such claim at the time the plaintiff made a demand of payment; but had promised to pay or settle. The defendant excepted ; and a verdict was found for the plaintiff.
The promise, in this case, to pay, was without consideration, as the plaintiff had previously purchased the note; and the defendant did nothing to induce the plaintiff to purchase.
On a different ground, however, 1 think the evidence inadmissible. In the case of Wheeler v. Raymond, (5 Cowen, 231,) the doctrine of set off, when relied On against the plaintiff on the record, was fully considered. It was there held that the act has reference to persons dealing together, and having demands against each other; that in such cases, a set off is allowed ; but that where the plaintiff on the record is a stranger to the set off, and the demand not against him, the set off was not within the provisions of the act; which declares, that if the plaintiff is over-paid, the jury shall find a verdict for the defendant, and certify how much the plaintiff is indebted more than the sum demanded ; and that the defendant shall have judgment and execution for the balance. If this be a sound construction of the act, it follows that the set off is allowable only in those cases, where, if it exceeds the plaintiff’s demand, the defendant may compel the plaintiff to pay the excess.
It will not be pretended that this plaintiff was liable to judgment and execution, had the defendant’s'setoffexceed-ed his not». It is true, the plaintiff took the note, subject to the equity which existed between the payee and maker-*695But it must always be understood as inseparable from that principle, that the equity, or defence relied on, is such as may be used consistently with the established forms of proceeding in a court of law. They cannot be made to yield to the particular hardship, if any, of a given case. A set off is only available, in consequence of the statute, and in the manner there pointed out. When a defendant cannot place his defence within its provisions, he can derive no benefit from it. In the case of negotiable paper, a defendant who has a bona fide set off may sustain an injury : but it is for the legislature to extend the remedy. This construction of the act does not impair any defence, not depending on the question of set off. If the defendant had paid the note in fact, or shewn it was not valid in its origin, or otherwise discharged, before transfer, and after due, no difficulty would lie -in his way. But that is not the case.' The ground of defence is a set off, which would be unobjectionable in an action in the name of the payee ; but is not valid against the plaintiff, who sues in the character of endorser, or bearer. The motion for a pew trial must be denied.
New trial denied.