The Opinion of the Court was delivered by
Treat, J.This was an action of debt commenced in the St. Clair Circuit Court by B. J. West, the appellee, against Hinckley and Sargent, the appellants.
The declaration was on a writing obligatory executed on the third of Jane, 1839, by the appellants and A. W. Snyder, since deceased, in the penalty of $6000; which, after reciting that Hinckley had purchased of the appellee all his interest as a partner in the firm of T. Hinckley & Co., was conditioned to keep harmless and indemnify the appellee from all liability for any debts contracted by Hinckley on account of the firm.
The second breach alleged the recovery by Henry West of a judgment against the appellee, Hinckley and one Pensoneau on the 21st of April, 1842, for $136-37 debt, and $8-18 costs, on a demand contracted by Hinckley and existing against the firm of T. Hinckley & Co. at the date of the writing obligatory, and averred the payment of the judgment by the appellee on the 23rd of March, 1846.
Several other breaches were assigned, but as they were withdrawn on the trial, it will not be necessary to notice them, or the numerous issues of law and fact founded on them.
Issues of fact were formed on several pleas applicable to the second breach, such as non est factum, payment, and denial of liability on the part of the appellants. The Court sustained a demurrer to a plea alleging in substance, that prior to the commencement of the action, the'appellee had collected and received $1000 from debts due the firm of T. Hinckley & Co. at the date of the writing obligatory, and which amount the appellants offered to set off against the damages claimed by the appellee.
The cause was submitted to a jury, and a verdict returned as follows: “We find the issues .for the plaintiff, and assess his damages at one hundred and fifty four dollars.”
The Court overruled motions for a new trial and in arrest of judgment, and rendered a judgment that the appellee recover of the appellant the sum of $6000 for his debt, to be discharged on the payment of the damages found by the jury, and the costs.
Various errors are assigned, only two of which need be noticed. One of them is as to the validity of the plea of set off. The plea is clearly bad. It seeks, in an action against two, to set off a debt due and owing from the plaintiff to one of the defendants and a third person not a party to the suit. This is not allowable. Demands to be set off must be mutual, and exist between-the parties to the record. Grigg v. Phillips, Bre. 107; Barbour on Set Off, 75; Walfe v. Washburne, 6 Cowen, 261. If the appellee has received money belonging to Hinckley and his co-partner, Pensoneau, they must join in the action to recover it. Sargent has no legal interest in the demand, and cannot therefore avail himself of the benefit of it. It is insisted that the demurrer should have been carried back and sustained to the declaration. The declaration has been examined and, in the opinion of the Court, is not obnoxious to a general demurrer.
The decision of the Court refusing to arrest the judgment is assigned for error. The decision was .erroneous. The case of Frazier v. Laughlin, 1 Gilm. 347, is expressly in point. The verdict was not broad enough. It did not find the amount, of the debt. That is a fact which a party has . the right to have found by a jury. The Court had no authority to amend the verdict by adding the amount of the penalty of the bond as the debt. We reverse the judgment with much reluctance, for if this error had not intervened,' we should without hesitation affirm it.
The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceedings.
Judgment reversed.