The opinion of the Court was delivered by
Wright, A. J.On or about the first day of January, A. D. 1870, plaintiff borrowed from the defendant the sum of two hundred and fifty dollars, and, to secure the payment thereof, made and delivered to the defendant, as collateral security for the payment of said note, a certain other note, made by W. J. Byrd, James P. Wilson and A. C. Byrd, payable to the plaintiff, bearing date the sixth day of November, 1865, for four hundred and eighty dollars. On the eleventh day of March, 1870, plaintiff made a payment of sixty-five dollars on the note that was given for the two hundred and fifty dollars borrowed of the defendant. The defendant disposed of the note placed in his hands by the plaintiff as collateral security for the payment of the note given for the ihoney borrowed.
This action was brought for the purpose of causing the defendant to surrender to the plaintiff the note which, was given for the borrowed money, and to pay over to plaintiff a certain amount of money alleged to be in the hands of the defendant from the disposition of the note placed in his hands as collateral security.
At the trial the defendant offered to prove a certain claim, which was objected to by the plaintiff, on the ground that, even if valid, it was a debt due by the partnership firm to which plaintiff had once belonged, and could not be set off against a debt due the plaintiff individually, unless there had been an agreement to that effect between the parties.
This objection the Court sustained, and defendant excepted and made such ruling by the Court the grounds of appeal. It is clear, when it appears upon the face of the complaint that there is a defect of parties, that the objection is to be taken by demurrer.
The objection here was not for a defect of parties. It arose from the nature of the discount which was disclosed by the answer, as against the demand presented by the complaint.
*356That was the individual debt of the appellant, and he proposed, by his answer, to set off a supposed claim, against the plaintiff and one DeLorme, who had, before that time, been copartners in merchandizing. It is not easy to perceive what form of pleading would amount to the waiver of the right to take advantage of the objection.
The claim, if valid, is not discountable against the demand of the plaintiff. It is against a copartnership, of which the appellant was one of the members, and in an action seeking the enforcement of an individual right, cannot be permitted as a discount.
Lowell & Paine vs. Whitridge, 1 McC., 7 ; Beckham & Erles vs. Peay, 2 Bail., 183; Kennedy vs. Cunningham & Childs, Chev., 50.
The motion for a new trial is dismissed.
Moses, C. J., and Willard, A. J., concurred.