The opinion of the court was delivered
by Woodward, J.— Evans and Clover were at one time partners.
' They dissolved. Clover bought out Evans, gave him three judgment notes for $1088.33 each, and agreed to pay the partnership debts.
At the same time, Clover assigned to Evans certain debts due to himself individually, and Evans bound himself to collect them and apply the money in satisfaction of certain specified debts of the firm.
The judgment notes were entered on record and this was a scire facias to revive one of the judgments. The plea was payment. The assignments of error are four in number, which will be con- . sidered in their order.
1. The defendant gave evidence that Evans had received money on the claim put in his hands by Clover, and had not applied it to the debts he had bound himself to pay with it. The propriety of admitting this evidence cannot he doubted. Clover had a right to appoint the application of his own funds, and when Evans undertook to collect and apply them for Clover, he had no right to keep the money, nor to divert it from its destination. If he *168did either of these things he made himself accountable for it, and it was a fair subject of set-off.
JBy way of rebutting this fact, the plaintiff offered to prove, that the attorney of one of the creditors, whom Evans was to pay with Clover’s money, had received from Evans a draft on a house in Pittsburgh, for two hundred dollars, to be credited when paid, but no evidence was offered to show that the credit was actually given, or that the draft was ever paid. This was not payment, nor was it performance of the duty Evans had undertaken, and the court were right in rejecting the evidence.
2. But if Evans, still liable to partnership creditors, was compelled to pay debts which by the terms of .the dissolution Clover had assumed and agreed to pay, why would not such a fact be an answer to Clover’s set-off? These claims back and forth, all grew out of, and were connected with the same transaction, the dissolution of the firm. By the terms of the dissolution, Clover assumed the debts of the firm, and received a consideration therefor. As between him and Evans they became his debts. For a specific portion of them he furnished funds to Evans, which as we have said, Evans was bound to apply as appointed; but Clover was equally bound to pay the rest of the debts. If then Clover neglecting to perform his agreement, suffered debts which he had bound himself to Evans to pay, to be collected out of Evans, what was it but appropriating the funds he had put into Evans’s hands in a different manner from that first indicated, but still to his own use ? And if Clover had the benefit of these funds in that manner, he is not entitled to set them off against this judgment, for that would be to give him the benefit of them twice. We are of opinion, therefore, the court erred in rejecting the evidence offered to show that Evans paid debts of the firm of Clover and Evans, which Clover was bound to pay. It was not set-off against set-off. It was an answer to the defendant’s evidence in support of his plea of payment. It was showing that in equity and good conscience he had not paid this judgment; that the funds he had entrusted to the plaintiff had gone to his own use by his negligence in not performing his agreement, and therefore that he was not entitled to plead them as payment of this judgment.
How far this evidence would have reached, whether to the extent of all the moneys received by Evans to Clover’s use, we have no means of determining. What we decide is, that it was rebutt-' ing evidence, competent for the plaintiff to give, and that it ought to have been admitted. If on the next trial it is not shown that Evans paid partnership debts assumed by Clover, to the full amount of Clover’s funds in his hands, the balance whatever it is, will be applicable to this judgment, unless indeed, it be shown to have been applied to the specific debts which Evans was to pay out of these funds.
Note by the Reporter. — Por reasons which need not be explained, parts of this opinion were written by Mr. Justice Black, the residue by the judge who read it.3. It appears that Clover had previously to this trial, applied to the court to open one of the other judgments against him, and his motion was founded on an affidavit of the same facts which he used here as a defence. The motion was refused. The plaintiff asked the court to charge, that the refusal to open the judgment in the other case was conclusive upon the parties in this. Had the motion been made in this judgment, no such effect could have been attributed to the denial of it, much less when made in another. The matter alleged arose subsequent to the judgment, and was proper as defence to a scire facias, and this, most likely, was the reason the motion to open was not entertained. But the refusal of that motion.is not a judgment, sentence or decree, and concludes nothing. It would have been error if the court had affirmed the plaintiff’s point.
4. Before the cause went to the jury, the plaintiff asked leave .to discontinue the suit, which the court refused. It is quite clear that a plaintiff may take a nonsuit on the trial whenever he thinks proper. At common law he might do so at any time before the verdict was actually recorded, and the only restriction of the right ■ by our statute, is that which requires it to be exercised before the jury announce their readiness to deliver the verdict. But a discontinuance is not a nonsuit, though the difference in their legal effect is slight. A greater distinction exists in the mode of applying them, the one being subject to the discretion of the plaintiff, the other of the court. The plaintiff has a right to suffer a nonsuit before or at the trial, and to deny it to him would be error, but a discontinuance may be allowed or refused according to the discretion of the court, which is not assignable for error. We cannot doubt it was a discontinuance and not a nonsuit, the counsel asked in this case, and the court had a right to refuse it. The only error apparent in the record having been pointed out, the judgment is reversed, and a venire de novo awarded.