The opinion of the court was delivered, by
Lowr.ee, C. J.The defendants below do not deny their obligation to pay the note, and they can have no valid objection to the plaintiff’s claim upon it, unless they have a set-off that is valid against him or them for whom he sues. The plaintiff got the note, and afterwards some other claims, as security for his deposit in the bank, and if they should all be collected in full, they would overpay him to the amount of $381.86. _ But in December 1860 he paid $295 of this to the bank in its own notes, borrowed by him to be so used, and to be returned if not allowed in payment. The balance of $86.86 belongs to the bank, and is subject to be paid by its notes, and the defendants claim to pay at least that much by a set-off of notes of the bank in their possession.
They do not appear to have obtained the $385 of bank notes now held by them until November 1861, long after the plaintiff *473had obtained and paid his $295; and, for aught that appears, they may be holding them for the benefit of some other persons. We find, therefore, no equity in their favour as against any more than the balance $86.86. But even this surplus arises out of the' other securities subsequently given to the plaintiff by the bank, and not out of this note ; and it does not appear that those other securities have been fully paid, and therefore the set-off, even as against this, is not proved.
Judgment afErmed.