It is too late now to question the proposition, that on the counts for money had and received, and money paid, a note may be given in evidence in a suit by an indorsee against the maker. It is evidence of money received by the maker, to the use of any one who shall become the lawful holder by indorsement. State Bank v. Hurd, 12 Mass. 172. Penn v. Flack, 3 Gill & Johns. 369. Raborg v. Peyton, 2 Wheat. 385. Olcott v. Rathbone, 5 Wend. 495.
On the other'point, we think the direction of the court oí common pleas was right. The plaintiff, suing upon an overdue and dishonored note, may be met by any set-off, or other equitable defence, which would avail against the payee. If he chaise, for which this note was the consideration, did not conform to the warranty, the purchaser, in a suit on his note by the vendors, might have a deduction, for the breach of warranty, from the note. Harrington v. Stratton, 22 Pick. 510. But what would he have a right to deduct ? The defendant insists that it is the difference between the amount agreed to be paid for the chaise, that is, the amount of the note, and what the jury should deem to have been the true value of the chaise at the time. But the judge declined to adopt this rule, and instructed the jury, that if there were defects in the chaise, amounting to a breach of warranty, they should deduct as much as the chaise was worth less on account of those defects.
The court are of opinion, that the claim of the defendant could not be supported, and that the direction to the jury was right.
There was no question before the jury as to the actual worth of the chaise; no question whether either party had made a good or a bad bargain. This mode of defence is of nodern origin, founded on a liberal application of the rules of law, which allow such deduction as a substitute for a cross *280action on the warranty, to avoid circuity of action. The same rule of damages, therefore, must be adopted, as would be adopted m assessing damages in such cross action. In that case, it is very clear that the rule of damages would be the loss arising from those defects in respect to which the warranty is broken.
Exceptions overruled.