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The opinion of the court was delivered by

Davis, J.

After the long usage which has obtained in this state, and repeated decisions of this court sanctioning such usage, it is entirely too late to deny to a written contract, having the usual form of a promissory note in every particular, except that it is payable in some specific article, the properties of such an instrument’. The replication, that the paper was duly witnessed, was therefore a good answer to the plea of the statute of limitations.

The only other question, which the case presents, is, whether the county court were correct, in denying to the defendants the right of setting off against the plaintiff’s demand the two notes executed by the plaintiff to Foster, and which, at the time of trial, were in the hands of the defendants.

*354As these notes were payable to Foster or bearer, they might have been transferred to the defendants, so as to have enabled them to offset them against the plaintiff in this suit, without any indorsement whatever, provided the transfer had been made, and notice thereof given to the plaintiff, previous to the commencement of this suit. These circumstances are made indispensable by statute. For the purpose of sustaining a suit thereon, in the name of the holders, no such previous notice would be necessary. If the defendants deduce title through either of the two indorsements upon the notes, there would be the same necessity for showing notice. The only notice, which appears to have been given, was from Jonas Fletcher, to the effect that he was the holder of the notes. We are not at liberty to construe this into notice, that he and the other defendant were jointly the holders of the notes, by indorsement, or otherwise, — more especially as each note exhibits a full indorsement, in strict conformity with the terms of the notice. Nor can any aid in favor of such a construction be derived from the blank indorse-ments. Both jointly, or either separately, could avail themselves of such a negotiation ; — nothing on the face of it indicates who, in particular, is to have the benefit of it. It is then perfectly consistent with the other indorsement, and with the notice given; except, if it followed the other, it was wholly unnecessary and superfluous. But we have no means of knowing whether it followed or preceded it. Besides, both were equally superfluous.

Neither does the fact, that both defendants possessed the notes at the time of trial, and attempted to file them in offset to the joint debt due from them, afford any presumptions, which can remove the difficulty. So far as this particular question is concerned, possession is determined by the legal right; if that were in both, the possession of either would be the possession of both. I should not be inclined to attach any decisive importance to the terms, in which this notice was couched, provided attending circumstances were such, as would naturally induce a belief in the plaintiff, that the notes were procured for the purpose of satisfying this debt, and that Jonas Fletcher intended to apprise him of that fact. The fact, that a joint debt existed against the two, may have some tendency that way ; but the circumstances already adverted to, in respect to the full indorsement and special notice, tend much more strongly to an opposite con-*355elusion. If there were evidence in the case, that the full indorsement was first put upon the notes, but that no actual transfer to the in-dorsee followed in accordance with it, I am disposed to concede, that the payee might treat it as a nullity, and proceed, by an indorsement in a different form, to negotiate the notes to any other persons, to whom he pleased. Story on Bills, § 209. But there is no such evidence. It seems more natural to suppose, that the indorsement in blank was an after thought, made subsequent to a full and perfect negotiation to a different party, and probably after the commencement of this suit, in order to subserve a purpose not originally contemplated.

However this may be, there was no error in the judgment of the county court, and the same is affirmed.

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