The court below was of opinion, that this note being payable to order, on demand, with interest, though in point of law it must be considered as payable immediately, yet as it was payable to order, it must have been intended to be negotiable ; and being also payable with interest, it seems to *59have been intended as a permanent security; and that this mode must have been taken to give additional facility to the-payee in raising money to meet the demands with which he was onerated, by the failure of the makers; and the effect of this arrangement would be defeated, by allowing a set-off: That the suit was intended to give additional security instead of clogging the note ; and that the defendants, having put it into the power of Lee to appear as owner of the note, under these circumstances, ought not to avail themselves of their other claims upon him, as against these plaintiffs. As this court, however, have not decided the case upon this point, I shall only allude to some of the cases which seem to support these principles, without examining those which might be cited to the contrary. Heywood & al. v. Watson, 4 Bing. 496. (15 Serg. & Lowb. 55.) Pease & al. v. Hirst & al. 10 Barn. & Cres. 122. (21 Serg. & Lowb. 38.) Barough v. White, 4 Barn. & Cres. 325. (10 Serg. & Lowb. 345.) Sice v. Cunningham & al. 1 Cowen 397. Vreeland v. Hyde, 2 Hall 429.
Another question of considerable importance arises in this case, whether under our statute, a set-off can be made in a case where the plaintiff sues in his own right., and the debt is against another person not party to the record. It not being necessary to decide this question, at this time, and it being a question upon which learned judges have widely differed, in a neighbouring state, no opinion is expressed.
This case I consider as determined by the case of Robinson v. Lyman, (ante 30.) in New-London county, decided at this term. The authorities cited and principles adopted, in that case, are strictly applicable to this ; and according to those principles, the defendants are not entitled to a set-off. Of course, there can be no new trial.
The other Judges were of the same opinion.New trial not to be granted.