Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-16
December Term - Nashville,
1870.
Joseph II. HeiskeII, Attorney-Gen-
eraI and Reporter.
No. 95.

J. D. Tillman, Administrator, vs. Thornton Flint.
The plaintiff brought his action of
debt upon bill single for five hundred
dollars, executed by defendant and pay
able to Henry Kelso, the plaintiffs in
testate. The defendant proved that
Henry Kelso, the payer of the note, was
member of the firm of Kelso & Nc
Donald, acd under the plea of set-Off
offered in evidence note of said firm
due and payable to himself for the sum
of three hundred and forty-one dollars.
The production of the note as evidence
under the plea was objected to by the
plaintiff and the objection was by the
court sustained. The verdict and judg
ment were for the plaintiff, and the de-
PENDANT has appealed in error.
The question of law submitted is
whether the defendant under our statutes
can be allowed to sett-off a partnership
liability against his individual debt.
There is much force in the argument of
the defendants counsel that the term
mutual demands" IS used in our
statute, means the right of the de-
PENDANT to sue and recover by cross
action of the plaintiff as principal his
demand against him. And especially is
this so in view of our statute by which
all Joint obligations and promises are
made joint and seversl-and persons
jointly or severally or jointly and sever
ally bound on the same instrument may
all or any part of them be sued. Code
2,7S7 ct seq
But set off is not a cross action, but
mere substitute for it, and thing IN
known to the common law. According
to the common law mutual debts are dis
linct and unextinguishable except by &C
tusl payment or release. l Rswle 293.
If the plaintiff, it is said, was indebted to
the defendant in as much or even more
than the defendant owed to him, yet the
defendant had not any method of setting
off such debt in the action brought by the
plaintiff for the recovery of his
debt Selwyn N. P 573. The
English statute of 2 Geo. ii chap.
%, Sl3, was the first statute of set off of
which we have any account, audit was en-
acted it is said, to prevent circuity of action
or bill in equity. By that statute
it was provided that, "when there are
mutual debts between the plaintiff and de-
PENDANT, or if either party sue or be sued
as executor or administrator, where there
are mutual debts between the testator or
intestate and either party, one debt may
be set against the other" By the statute
of 8 Ge.'. chap "a "a the provision of
the first statute was made perpetual, but
as doubts arose as to whether debts of a
different nature could be set off, it was
provided further by the latter act that
"mutual debs may be set against each
other, Notwithstanding that such debts
are deemed in law to be of different ne
tIIre, unless in cases where either Of said
debts shall accrue by reason of q penalty
contained in any bond or specially. "
These provisions were incorporated into
the statute of North Carolina of 1856 Oh.
4, z, and they are the same that have
come down to US and are embodied sub
stantialy in our Code. 1t was long ago
held in England that joint demand can
not be set off against a separate one: 6
| BAG. Alb. 1876. And it was decided at q
very esIly day in this State that joint
| demand cannot be set off against a separ-
| ate one because not mutual demand
within the act of 1855 CHI. 4, 81. And
again, few years laer that debt due
to one of several parties cannot be set of
against demand due from them Jointly.
Blanks VS.. Smith, Peck R. 1876. Rob,
ertson g. Curry VS.. Talbot & Henly, 2
Yerg. 258. And the precise point in this
case was before the Supreme Court OF
Maryland, where it was held that deb;
due to the defendant by partnership of
which the plaintiff is member cannot
be set off against the separate claim Of
the plaintiff Wilson vs.. Keedy, s Gil
1877. And so it is held in Pennsylvania
that in suit against one member of {
firm it IS not permitted to set off deb
due the firm from the plaintiff. 2 Bar
262. There is an exception recognize