By the Court,
Ringo, C. J.Several errors have been assigned, but those principally relied on are: first, that the issue joined is immaterial; and, second, that the Court erred in refusing to exclude the testimony adduced by the defendant to establish the demand mentioned in his plea, on the ground of a variance between them. In respect to the first ground of objection, we_deem it unnecessary to say more than that, in our opinion, the plea was no answer to, or defence in bar of, the action. The demand sued for was due to the plaintiff in his fiduciary or representative character, only. He could maintain no action upon it, in his own right. The plea shows an indebtedness, on the part of the plaintiff, in his own right, to the defendant, and insists upon this indebtedness as constituting a good bar to the action. The language of the plea is, in this respect, loo plain to admit of any other construction. It is, therefore, an attempt to set off the individual debt of the administrator against a demand which the defendant owed to the plaintiffs intestate, in his lifetime, and to which the plaintiff has acceded, and is entitled only as his administrator. Consequently, the pleadings fail to show such a mutuality of indebtedness between the parties as, according to the provisions of our statute admitting certain demands to be set off, authorizes the one to be set off, or pleaded in bar of, the other.
■ If the conclusion to which we have come, in respect to the plea, be correct, there can be no doubt but that the whole of the testimony adduced by the defendant, was irrelevant to the issue formed upon his plea, and therefore ought to have been excluded by the Court, on the motion of the plaintiff The rule being inflexible, that the allegata et probata, must correspond. Here the issue was, as to whether the plaintiff, in his own right, was indebted to the defendant. The testimony adduced neither proved, nor conduced to prove, such liability, but every portion of it tended to establish an indebtedness on trffe part of the plaintiff’s intestate, in his lifetime, to the defendant — a fact in nowise put in issue, or controverted by the pleadings.
We are, therefore, of the'opinion, that the Court erred in refusing to exclude the testimony adduced by the defendant, on the trial of the issue in this case, made up by the parties, the same varying therefrom, and being wholly irrelevant thereto; and also, in finding said issue in favor of the defendant, and thereupon pronouncing final judgment in his favor, against the plaintiff.
Judgment reversed.