
    Lovel & Paine vs. I. B. Whitridge.
    JDebts to be set-off must be in mutual rig-lits; and an individual deiaaná can not be pleaded in discount of a demand due toa p»rt,.e'"sflipa unless it can be shewn that an agreement or understanding r-j jied between the parties, that such a private demand should be received in discount,
    'Ti-ilED before the City Court of Charleston, September Perm, 1820.
    The question in this case was, whether an account due by Pains, one of the partners, to the defendant, coukl he set-off against the debt, due by the defendant to the plaintiffs l
    
    The book-keeper of the plaintiffs proved that the entries were made in the usual manner ; that according to them, the defendant appeared to be the debtor of the firm. Some of the articles were furnished under written orders, drawn by the defendant upon Paine, and some without such orders ; that whether the goods were sent with or without orders, the entries were the same; and that it was notorious that the plaintiffs were partners at the time when these goods were purchased. Their names were over the door of the store ; and the defendant himself was frequently in the house, and upon entering it, could not avoid seeing the names over the door.
    Both of the plaintiffs were then examined.
    Mr. Paine said, that in 1816 or 1817, he made an agreement with the defendant, under which, the defendant was to get from him such articles as he wanted : that th< witness mentioned it to his partner Lovel, who said nothing in reply. Under this agreement the defendant was to take @ut of the store a sufficiency of articles to satisfy a private debt due by the witness to the defendant: that in the books of Lovel &? Paine, the things taken by the defendant were not carried to the individual account of the witness. Lovel, be said, was present when some of the articles were delivered to the defendant under orders drawn by him upon-the witness. Lovel m.wr auid that the defendant ¡should be discharged fro’m his liability to the firm. The defendant was debited in the books like any other person purchasing from the partnership. The articles purchased by the defendant were the property of Lovel £sJ Paine.— The defendant knew of the partnership, and that the goods came out of their store. He said that the partnership was dissolved, and the collection of the debts due to it was exclusively with Level.
    
    Mr. Lovel said, that hé knew that the defendant was a creditor of -Paine: that for the articles purchased by the defendant, he Considered him exclusively responsible ; and that Paine never said he would he answerable for the defendant’s payment. If Paine had been considered answei-ahle, he would have been charged as,being so in the hooks, which had not been done. Things had been delivered out of the siore frequently, under orders drawn upon Paine alone, and under orders drawn upon the witness done ; and if he had regarded himself as individually responsible under any orders dfawa upon himself, he should naive charged himself in the books, and so ought Mr. Paine to have acted, if he thought himself bound for thd-payment of defendant’s debt'. The Avitness did not permit, the defendant to take the articles upon the credit of Paincf but upon his own credit, as he regarded the defendant to be perfectly solvent, and would have trusted him to a much larger amount: that if his opinion of the defendant had been different, the witness would not have sent him the goods. The witness had, in other instances, refused to send goods under orders drawn upon Paine. He recollected particularly the case of Orran Byrdj and the -reason for that refusal was, that he did not think Byrd could be trusted with safety. The partnership between Paine and the witness was dissolved, and Paine tvas indebted to the firm upwards of $ 5,000.
    His Honor observed to the jury, that under the discount law, debts to be set off must be in mutual rights : that an individual demand could not be pleaded in discount against a demand due to a partnership, unless it could be sh^wn that an agreement or understanding existed between the parties, that such a private demand should be received in discount; and that as such proof had not heen exhibited in this case, he thought the plaintiffs entitled to a verdict.
    The jury found a verdict for the plaintiffs, rejecting the discount.
    The particulars of the discount were not gone into; it being agreed by the counsel on both sides to submit to the Court the question of law arising under it; A notice that a new trial would be moved for was served upon the Court. The grounds are included.
   Mr. Justice Colcock

delivered the opinion of the Court.

In this case, the Court concur with the Recorder in the view which he has taken of the law, and are also of opinion that there was no evidence to take the case out' of the operation of the principles laid down by him. There was no agreement on the part of Lovely that the debt of Paine should be paid out of the co-partnership funds. Nor indeed was any such evidence as ought to be relied on, offered to shew that Paine himself intended it; for if so, he certainly ought to have debited himself with the goods delivered the defendant. As to the orders being drawn on one of the co-partners, it cannot benefit the defendant, for this is very common; and it is clear he knew-he was receiving the goods of the co-partnership. It may be his misfortune to have misplaced his confidence, but the Court can not depart from the established rules of law to afford him relief. The motion is discharged.

Justices Johnson and Huger, concurred.

Mr. Justice Gantt, dissented.  