SCOTT TS. RIVERS. The defendant's counsel offered in evidence a duly authenticated copy of the deed, to ascertain the time at which the $2000 had been paid: on objection being made to which, the Court permitted it to go as evidence to the jury; and instructed them it was admitted for the sole purpose of enabling them, should they allow the set-off, to ascertain from it up to what time to calculate interest. On this state of facts the Court further instructed the jury, that if they believed T. Scott was the agent of the plaintiff; or that the note sued on was his property, they must allow the defendant the $2000 agreed to be paid for the house and lot; and that possession of the note by T. Scott, was evidence sufficient for the jury to infer that he was either the owner of the notes, or agent of the plaintiff, unless there was evidence from which they could infer that the notes were fraudulently, or improperly obtained from the plaintiff. Other exceptions were taken to the opinion of the Court below, but which will be sufficiently embraced by the rematks to be made on these already stated. The jury found for the defendant, and certified a balance in his favor of $960. In the above opinions and instructions to the jury, the Court is charged to have erred. The questions arising are, 1st. Was the copy of the deed admissible as evidence for the purpose for which it was received, or otherwise. 2d. Were the instructions to the jury correct, that the unexplained possession of the notes by T. Scott, was evidence sufficient for them to infer either that he was owner of the notes, or agent of the plaintiff; and, that if he were either, the jury might allow the defendant the $2000, agreed to be paid for the house and lot. SCOTT vs. RIVERS. With respect to the deed, it is sufficient to observe, that as T. Scott was the grantee, as he received the deed, then resided in Carolina, and must be presumed to have remained beyond the jurisdiction of the Court in which the trial was had, this is believed to be a case within the spirit and intent of the statute. "that if the original deed or conveyance, be lost or mislaid, or be destroyed by time or accident, and not in the parties power to produce," then a duly certified copy shall be received as evidence in lieu of the original. Hence it is conceived that there was no error in admitting the copy as evidence, either for the specific purpose, or any other legitimate object. But on the second point there appears to be more difficulty. Admitting that the possession of the notes by T. Scott, accompanied, by his claim of ownership, was prima facie evidence of the fact, this was a legal presumption rebutting the idea of his being the agent of C. W. Scott, the plaintiff, and payee of the notes; consequently it was not a circumstance from which the jury were authorised to infer that he was either the one or the other, but that he was the owner merely. Then if the contract between the defendant and T. Scott, was made by the latter in his own right; and thereby he became indebted to the former, or made payment on the notes to him, to the amount of two thousand dollars, or other sum, the balance, after satisfying the note sued on, could not be treated as a debt or set-off against C. W. Scott, the plaintiff, who must be regarded as a distinct person. Whether, according to the terms, and true intent, of the contract respecting the house and lot, the sum of two thousand dollars had not been paid on the several notes; and whether the defendant would not SCOTT vs. RIVERS. have been entitled to a discount to the same amount, in any future suit or suits, that were or could have been brought against him on the same notes, by either T. Scott, C. W. Scott the payee, or any subsequent holder, or assignee, are questions essentially different from the one presented. If such was the spirit of the contract with T. Scott, when he was the legal holder of the notes, though they were drawn payable to C. W. Scott, or order, and had not been endorsed, we think the defendant would have been entitled to the benefit of such defence as payment; and if seperate suits were brought on the notes, by making this proof to the satisfaction of the jury, he ought to have been allowed to defeat the recovery in one, and to reduce the amount on another, as far as the balance of the payment would go. But, in the instruction that the defendant in a suit by C. W. Scott, on a note for one thousand dollars, could be allowed the benefit of the payment to the other Scott, to a much larger amount; which could only be done. by finding a balance against the plaintiff, as in case of set-off, the Court is believed to have erred. authorise a set-off, and a balance against a plaintiff, the debts or demands must be mutual and subsisting between the same parties, which in this case could not have been inferred. Judgment reversed and remanded. To . SCOTT TS. RIVERS. SCOTT cursus RIVERS. Courts of law, in the exerciso of legitimate and incidental powers, have authority to authorise the set-off, of one judgment, against another, existing be. tween the same parties, in the same Court. And such order is not subjeci to revision in en or. This case was submitted on a motion, to dismiss the writ of error; and involved the correctness of the determination of the County Court of Monroe, in relation to an order off-setting one judgment against another, which existed between the same parties, in the same Court. The questions decided appear in the opinion of the Court. SAFFOLD, J.-The present plaintiff was plaintiff in the County Court, and as such, obtained judgment on a note against the defendant for one thousand four hundred and thirty eight dollars and fiftythree cents. At the same time, in another suit between the same parties, a trial was had, in which Rivers, the defendant, obtained a judgment, as in case of set-off, for the sum of nine hundred and sixty dollars, as a balance certified by the jury to be due him, over and above the sum demanded of the said Charles W. Scott. After which, and during the same term, a motion was made, at the instance of Rivers, the defendant, to have his said former judgment against the plaintiff, set-off and placed to the satisfaction of so much of the judgment standing against him. The Court sustained the motion, and ordered the set-off accordingly. This order is the matter assigned for error. SCOTT VS. RIVERS. By means of the adjudication in the former case, we know that the judgment rendered for the balance in favor of the defendant, Rivers, was considered erroneous, and that the same has been reversed during the present term. This information, however, acquir ed in a different suit, can have no influence in the decision of this case. The different suits and records being separate and distinct, we can only view them as such. The record informs us that mutual judgments having been obtained by each of the parties against the others as above stated, it was ordered by the Court that one should be a set-off and satisfaction of an equal amount against the other; and that Rivers, at whose instance the motion was made, should enter a remititter upon his judgment which done accordingly. The record shews no special causes of necessity or objection to the course. Hence, the question arises, 1. Is it competent for a Court of Law, in the exercise of its legitimate and incidental powers, on motion, to order one judgment to be placed as a set-off to another between the same parties, in the same Court; and this without shewing on the record any peculiar reason or necessity for it. 2- Is such order subject to revision in error. In the case of Davidson, for McKim vs. Geogha-13Bibb,233. gan, where a motion was made of a similar kind, the Court ruled that the authority to set one judgment against another between the same parties, was a power incident to courts of law, as well as equity; and that the same could be done with propriety, if from the circumstances it were found consistent with the principles of equity. In that case, however, the set-off was refused, on the ground that it would pre |