delivered the opinion of the Court.
The defendant is authorized to set off the amount in which plaintiffs were indebted to him when they commenced their action. The debt to be set off must be shewn to have been then a good and subsisting debt to defendant. In effect he has affirmed that the assignment had been made, and that the note of plaintiff’s was due to him when they brought their action, and it lay on him to prove this. The time of the assignment to him, is to be presumed, to bo within his knowledge, and not within that of plaintiffs. They could not, without a violation of one of the plainest principles of evidence, have been required to prove that the assignment was not made before the action was instituted. ■ If the principle contended for on the part of the appellant were correct, a man indebted by any negotiable securities could not be safe in suing his debtor. They might, after being sued, procure indorsements, without date or with false dates, of *8his notes and subject him to the costs of actions, for which he had good cause when they were instituted.
Let the judgment be affirmed.