1. The defendants, in their first plea, have averred, that Enos Babcock, the payee of the note, while he was the holder, being indebted to the defendants in the sum of eight hundred dollars, by book, agreed with them, that so much of the book debt, as should be necessary for that purpose, should be applied towards the payment of the note, *39and that he would deliver up the note in part payment of the book debt. This plea was traversed, by the plaintiff.
Upon the trial, it was claimed, by the plaintiff, that the defendants must prove, that, at the time of the agreement, they had a book debt of the amount of eight-hundred dollars, or at least to a greater amount than the sum due on the note, and that the agreement was to deliver up the note in part payment of the book debt. And in support of this claim, it is said, that the contract must be proved precisely as alleged in the plea.
There is no averment that any agreement was made as to the amount of the book debt. The defendants aver, that Babcock owed them a debt of eight hundred dollars, and agreed to make the set-off.
Had the defendants pleaded an indebtedness to them from the plaintiff of that amount, and a set-off in the usual form of such pleas, it is very clear, that they ¡night, under such plea, have given in evidence a book debt of any amount. It would not have been necessary, in such case, to prove the amount of the debt to be as great as stated in the plea. In this respect, the plea would not differ from a declaration in an action on book, where the plaintiff is never required to prove a debt as large as the amount specified in the declaration. The claim, therefore, that there is a variance between the contract alleged and the one proved, is without foundation.
But it is said, that the agreement was, that the note was to be applied in part payment of the book debt. It was so. But would Babcock be absolved from his agreement, if it should afterwards be found, that the two debts were equal ? This clearly would be against every principle of justice. No injury would be done to him, if it should be found, on examination, that he owed the defendants less than the parties supposed, when the agreement respecting the set-off was made. Suppose he had been sued, by these defendants, for a violation of his agreement in refusing to make the set-off; would the circumstance that the two debts were just equal, furnish him any ground of defence ? The same reasoning applies to that part of the charge of the court relating to a debt less than the amount of the note. But it is unnecessary to examine that part of the case, as the verdict of the jury shows, *40that they must have found a book debt as large or larger than the debt due upon the note.
2. It is, in the next place, claimed, that the verdict of the jury shows, that the defendants had twice paid the amount of the note — once, by a set-off of their book debt, and again by the sale of their goods. For aught we know, this may have been the fact; and if it were, we discover no reason why -the defendants might not have pleaded, in separate pleas, this double payment, and, upon satisfactory proof, ¡night not obtain a verdict in their favour upon both pleas. It is indeed unusual for a debtor to pay a debt twice ; still, if he does so, and is afterwards sued for the same debt, it would be very strange, if Ise could not show both payments, by way of de-fence to the suit.
We are of opinion, therefore, that a new trial must be denied.
In this opinion the other Judges concurred.New trial not to be granted.