delivered the opinion of the Court.
This suit was commenced against James and John Walker, before a justice of the peace, upon a note for about $300, upon which there were credits. Upon the trial in the Circuit Court the controversy was as to the payment of $180, claimed to have been made by James Walker before the date of the credits entered
But, can this judgment in favor of the defendants for $132.36 stand? Under our statutes, mutual debts may be set-off against each other. Originally this was ■only allowed to the extent to defeat the plaintiff’s demand; but by the Act of 1851-2 — Code 2922 — if the debt or demand so offered to be set-off, exceed the amount of the plaintiff’s demand, such excess being found by the jury, judgment shall be rendered against
In this case, the evidence which the jury have believed, shows that the demand upon which the suit was brought, had been fully paid before the action was brought, and they so in effect find. They do not find that the demand of the defendants exceeds the demand of the plaintiff the amount stated, or that upon the adjustment of their accounts, or claims, (or anything of equivalent import), this sum is due the defendants. Nor could they have so found upon the evidence — but they “find the matter in favor of the defendants and against the plaintiff” — evidently meaning that the plaintiff had no subsisting claim whatever. At this their verdict should have stopped. The remainder of their verdict should be rejected — such is the clear import of the authority referred to.
The. result of this would be, that the Circuit Judge should have disregarded the finding of the jury upon the set-off, and if satisfied with the finding of the jury in favor of the defendants, as to the plaintiff’s
Upon another ground, the finding of the jury as to the set-off is not supported by evidence. Upon the defendants’ theory, they have paid the debt, and one of them has paid the plaintiff in excess to the amount here claimed. This would be a claim due from the plaintiff to the defendant who thus paid it to him, -and prima facie would not be a debt due the defendants jointly — though it might be if the money belonged to them jointly. If this amount was due one of the defendants only, it could not be set-off against the plaintiff’s demand. Turbeville v. Broach, 5 Col., 270; Flint v. Tilman, 2 Heis., 202; 2 Yer., 258.
The judgment will be reversed, and the judgment rendered here that the Circuit Court should ihave rendered, in favor of the defendants for the costs.