Sec 1021

It is essential, to enable a set-off to be put in evidence, that it should be a debt from the plaintiff to the defendant. The test is mutuality.2 Set-off, in regard to parties, may be considered as follows: otherwise as to a debt owing by the plaintiff to a co-obligor, not summoned, which cannot be set up againt a joint demand.1 A surviving partner, also, in a suit against himself on a debt individually incurred by him, can set off a debt due by the plaintiff to the firm of which he was a member.2 On the death, also, of one of two or more joint debtors or creditors, the debt accrues to the survivor, and may then be pleaded as a set-off to an originally several debt of the survivor.3 A defendant, also, sued singly by a single plaintiff, may set off a joint and several debt due him by such plaintiff with others.4 And to a suit by a surviving partner for a firm debt the defendant may set off a debt due to him by the plaintiff in his individual capacity;5 unless, in case of the insolvency of the plaintiff, it should appear that this would work injustice to the firm.6 - Where there is one plaintiff and one defendant, the defendant may introduce, as an equitable defence, a debt due from the plaintiff to the defendant and his partners as a firm. This is not technically a set-off, unless the debt should have been assigned to the defendant; but the right to use such a debt for such a purpose is to be inferred from the assent of the other partners, when such assent is proved.7

1. When the defendant sued by a single plaintiff sets off a debt claimed to be due him jointly by the plaintiff and a third party. In this case the set-off cannot be permitted, as the defendant could not have maintained a suit against the plaintiff on the debt.3 Hence, in a suit by A., a set-off against A. and B. as partners cannot be received.4 Nor can B., when sued by A. for a separate debt, set off, under the English statute, a debt due from A. to B. and C. jointly;5 though if sued solely by A. for a joint debt of himself and another, he may plead a set-off of a debt due to them jointly by A.6 It is.

Debts must be between the same parties.

1 Paxson, J., Zuck V. Rafferty, Sup. Ct. Penn. 1881, citing Morrison V. Moreland, 15 S. & R. 61; Carpenter V. Butterfield, 3 Johns. Cas. 144.

2 Isberg V. Bowden, 8 Exch. 852; Schofield V. Corbitt, 11 Q. B. 779; Parker V. Kendall, 3 Vt. 540; Stickney V. Clement, 7 Gray, 170; Backus V. Spalding, 129 Mass. 234; North Bridge-water Bank V. Soule, 129 Mass. 528; Francis V. Rand, 7 Conn. 221; Dale V. Cooke, 4 Johns. Ch. 11; Murry V. Toland, 3 Johns. Ch. 599; Falkland V. Bank, 84 N. Y. 145; Ramsey's App., 2 Watts, 228; McDowell V. Tyson, 14 S. & R. 300; Carman V. Garrison, 13 Penn. St. 158; Haage's App., 17 Penn. St. 181; Singerly V. Swain, 33 Penn. St. 102; McCracken V. Elder, 34 Penn. St.

239; Logan V. King, 38 Penn. St. 93; Scott V. Fritz, 51 Penn. St. 418; Balt. Ins. Co. V. McFadon, 4 H. & J. 31; Watkins V. Lane, 4 Md. Ch. 13; Hen-nighausen V. Tischer, 50 Md. 583; Fus-ting V. Sullivan, 51 Md. 489; Tyrrell V. Tyrrell, 54 Md. 167; Ryan V. Barger, 16 Ill. 28; Enix V. Hays, 48 Iowa, 86; Jones V. Blair, 57 Ala. 457. See Bow-year V. Pawson, L. R. 6 Q. B. D. 540, and note thereto, 29 Eng. R. 704.

3 Arnold V. Bainbridge, 9 Ex. 153; Jackson V. Robinson, 3 Mason, 138; Blankenship V. Rogers, 10 Ind. 333; Ryan V. Barger, 16 Ill. 28.

4 McDowell V. Tyson, 14 S. & R. 300.

5 Leake, 2d ed. 1011, citing Middle-ton V. Pollock, 44 L. J. C. 618.

6 Stackwood V. Dunu, 3 Q. B. 822.

1 Henderson V. Lewis, 9 S. & R. 379; Archer V. Dunn, 2 W. & S. 327.

2 Johnson V. Kaiser, 40 N. J. L. 286.

3 French V. Antrade, 6 T. R. 582, cited Leake, 2d ed. 1012.

4 Owen V. Wilkinson, 5 C. B. N. S. 526.

5 Lewis V. Culbertson, 11 S. & R. 48. 6 Waln V. Hewes, 5 S. & R. 468.

7 Wrenshall V. Cook, 7 Watts, 464; Craig V. Henderson, 2 Barr, 261; Solli-day V. Bissey, 12 Penn. St. 347.

In Hopkins V. Lane, N. Y. Ct. App. 1882, 25 Alb. L. J. 175, the plaintiff sold to L., B., and M. jointly, a quantity of cheese. Each of the purchasers gave plaintiff a note for his share of the purchase-money. In an action against L. upon his note, he set up a counter-claim of breach of warranty and fraud in the sale of the cheese.

It was held, that the counter-claim was not available to L. The sale, such is the reason given, was joint and the liability of the purchasers was joint, but after the giving of the notes there was no joint obligation, simply because the cheese had been paid for. "But payment in the mode adopted did not affect the contract of purchase or the relation between the parties growing out of the joint purchase. Any claim, therefore, for damages growing out of the breach of warranty or the fraud, belonged to the three purchasers jointly, and could not be used by one of them as a counter-claim. One of them could not have separately sued the plaintiff to recover such damages, hence one of them cannot separately set up such damages as a counter-claim, under Code CiV. Pro. sec 151."

2. Where there are several joint plaintiffs and one defendant; in which case a debt due by one of the plaintiffs cannot be set off.1 To permit such a set-off would work injustice, "because that would be varying the remedy of the other3 without their consent, and compel them to exchange one debtor for another who might not be equally good or solvent."2 - Uuder the English judicature act, a defendant to a suit by several plaintiffs on a joint claim may set off separate counter-claims connected with the same matter, against each plaintiff'.3.

3. Where there are two or more defendants jointly sued by one plaintiff; in which case one of the defendants, if there be no conflicting equities, may set off a debt due him by the plaintiff, the other defendants being assumed to assent.4 - Courts of equity, in respect to the general principle before us, follow courts of law in refusing to allow a set-off of a separate against a joint debt, unless such assent is to be inferred.5 But where one joint debtor is only a surety for the other, he may set off a debt to the creditor by the co-defendant, who is virtually the principal.6 And a joint debtor or creditor may by his conduct estop himself from maintaining that a debt offered to be set off was joint and not several.7.

1 Woods V. Carlisle, 6 N. H. 27; Palmer V. Green, 6 Conn. 14; Pick-ney V. Kyler, 4 E. D. Smith, 469; Mil-burn V. Guyther, 8 Gill, 92; Tyrrell V. Tyrrell, 54 Md.; Booe V. Watson, 13 Ind. 387; Harlan V. Prosser, 28 Ga. 219; Davis V. Notware, 13 NeV. 421; Thatcher V. Notwell, 4 Col. 375. As to partnership, see infra, sec 1028.

2 2 Smith, L. C. 7th Am. ed. 320, citing Archer V. Dunn, 2 W. & S. 327; Johnson V. Kent, 9 Ind. 252; see Choen V. Guthrie, 15 W. Va. 100; Elder's App., 39 Mich. 474.

3 Leake, 2d ed. 1012; Manchester, etc. R. R. V. Brooks, L. R. 2 Ex. D. 243.

4 Childerston V. Hammon, 9 S. & R. 68; Stewart V. Coulter, 12 S. & R. 252; Crist V. Brindle, 2 Rawle, 121; Balsley V. Hoffman, 13 Penn. St. 603; Miller V. Kreiter, 76 Penn. St. 78; Locke V. Locke, 57 Ala. 473; Leach V. Lambeth, 14 Ark. 668; see Montz V. Morris, 89 Penn. St. 392; 2 Smith's Lead. Cas. 7th Am. ed. 320; Troubat & Haly's Prac. (Brightly's ed.) sec 551. 5 Story, Eq. Jur. 12th ed. sec 1437; Leake, 2d ed. 1011.

6 Infra, sec 1024; Hanson ex parte, 12 Ves. 346; 18 Ves. 232; Cheetham V. Crook, 1 McC. & Y. 307; Dale V. Cooke, 4 Johns. Ch. 15.

7 Stephens ex parte, 11 Ves. 24; Vulliamy V. Noble, 3 Mer. 621. To a suit on a note by a bank as endorsee the defendant may set off stock held by him in the bank. Whittington V. Bank, 5 H. & J. 489. A debt for goods sold to a husband will not be a set-off to a suit brought by him jointly with his wife on a note given to her when sole. Smith V. Johnson, 5 Harring. 40.