delivered the opinion of the Court.
Cowden brought an action of debt against Elliot, on a bond given by him to Cow-den and one Sanderson; the declaration shows that Sanderson was dead before the action was brought. Elliot put in a plea of set-off, alledging that Cowden and one Keene were jointly interested in the navigation of a boat, and that Cowden, as such part owner, employed him to navigate the boat. Issue was taken on this plea. At the trial, Elliot proved his plea exactly, and the Court decided that the evidence was insufficient in law to enable him to claim a set-off under the plea.
It is clear that the Court considered this matter as on a demurrer to the plea, and in that way held that Ihe matter of set-off could not be allowed. The proof must fit the allegation ; in this case it did do so, and the Court did wrong to exclude (61) it. But as the argument of the counsel, and the opinion of the Court, turned on the point whether in this ease the matter of the set-off could be allowed by law, I will endeavor to meet the point.
It is objected that Elliot’s demand wants mutuality, and that it is a joint demand against Cowden and another, and therefore cannot be set off. To prove the position correct, 6 Sac. Jlbr. 136 is cited. 'No doubt this is correct doctrine, according to the decisions under the British statute; it is correct as a general rule; yet I consider it to admit of some modifications. By two cases, if not more, decided by the British Courts, I find in the above cited page of Bacon this doctrine: That a debt due to a defendant as a surviving partner, may be set off against a demand upon him in his own right, and so vice versa. To prove this, Slipper v. Stedstone, 5 T. R. 493, ar.d Trench v. Andrede, 6 T. R. 583, are cited. I have looked into the cases and they fully support the point.
These cases show that although the demand was at one time in a condition that it could not be set off, yet when it became a sole or separate demand by the death of a partner, it might be set off. But this matter all aside, I am most clear that this demand of Elliott may, under our statute, be set off'. The .statute says, page 738 of the Revised Code: that if two or more persons be mutually indebted to each other by judgments, bills, bonds, bargains, &c., and one of them commence an action, one debt may be set off against another, notwithstanding such debt may be deemed in law of a different nature. The statute requires that the debts should be mutual. The meaning of this is, that A., the plaintiff, should be indebted to B., the defendant, and not that A. should be indebted to B. and another jointly; but by the above case cited from T. R. if one of the debts was a joint one, and by the death of one of the obligors or obligees, it became the sole debt of the other, or a sole right of a surviving obligee, then it may be set off. Our statute has done the same thing the *52eommon law would' have done;, where one of the joint obligors is dead.. In that case' the whole obligation would survive against the surviving obligor, and it would be a. sole demand against him. By the fourth section of the act defining the effect of contracts, Bev. Code, 215, it is declared that all contracts which were by the common, law deemed joint, shall be deemed'joint and several'to all intents and purposes. And by the latter clause of that section, it is declared that all joint assumptions of co-(62) partners and others may be sued on separately.
It seems to me to be clear that this demand against Cowden was his sole debt to all intents and purposes, though the other partner was also liable. If it was a several demand against him, it may be a set-off;. the mutuality required by the law would exist.
The judgment of the Circuit Cburt is reversed, and sent back for a new trial..