delivered the opinion of the Court, at Cumberland, in August ensuing.
The note in controversy, having been indorsed to the plaintiff some years after it was payable, if not then recoverable by the payee, it cannot be recovered by the plaintiff. The defendant is entitled to the benefit of any off-set, which at the time of the in-dorsement existed against the payee.
In Peabody v. Peters, 5 Pick. 1, the Court appear to have doubted whether any off-set could be filed, except between the original parties ; although it was admitted that the defendant might avail himself of any such matter in evidence. In a subsequent case, Sargent v. Southgate, 5 Pick. 312, they held that an account in off-set was necessaiy to be filed against the indorsee, to avail the defendant, unless he could prove that the subject matter of the off-set was agreed to be applied specifically in payment of the note. No such agreement is pretended here, and according to the case last cited, an account was properly filed in off-set, and the defendant could have the benefit of no charges, not thus filed. But the off-set may be disproved. It may be shown to have been *353otherwise discharged. In order to be allowed against the note, it ought to appear that the defendant really had such a claim, against the payee. That is the only ground in law or equity, upon which it can be set up. Repelling evidence against the off-set, was properly admitted. It is required to be filed, that the party to be charged with it may have notice, and come prepared to controvert its validity. All the evidence bearing upon the fairness of the off-set, was correctly left to the jury, and they have settled it.
One point taken in defence, is not entitled to special favor. The Judge was requested to instruct the jury, that if the horse, which formed the consideration of the note, was sold by the payee, and bought by the defendant, to defraud the payee’s creditors, the note could not be recovered. The Judge declined so to instruct them; and this is made one ground of exceptions. We must take the case as it is presented to us, and cannot go out of it for facts, which do not there appear. There is no evidence that the payee was insolvent, that he had any creditors, or that the sale of the horse was made, or the note taken, with any fraudulent view's whatever. There is nothing in the case reported, calling for the instruction requested, even if it was warranted and required by law, upon the facts assumed.
If the Judge declines to lay down the law applicable to the case on trial, as it ought to be, exceptions may be taken, and will be sustained. But he is not obliged to give his opinion upon legal propositions put by way of hypothesis, not growing out of the facts proved. It would tend to embarrass a jury, and to withdraw their attention from the points in controversy. We are of opinion the instructions were rightfully withheld, because we see nothing in the case, which rendered them suitable and proper.
The exceptions are accordingly overruled.
Judgment on the verdict.