
    William L. Whitaker et al. v. James H. Robinson.
    It is impossible, at law, to set off unliquidated damages against a fixed money demand ; therefore, to an action on a note, for a fixed sum, an offset cannot be made of the value of a slave of the defendant, alleged to have been converted by the payee of the note to his use:
    In error from the circuit court of Monroe county ; Hon. Francis M. Rogers, judge.
    James H. Robinson sued William L. Whitaker and George Hardy, as makers, and John Smith, as payee and indorser of a note; Whitaker and Hardy plead payment, and filed with the plea this account of offset: “John Smith to Abner Prewett, for the use of William L. Whitaker Dr. for one negro man, Jerry, aged about twenty-eight years, converted to your use.”
    It is not deemed necessary to notice the testimony on the part of the defendant; the jury found for the plaintiff the full amount of the note sued for, and interest, and the defendants sued out this writ of error.
    Davis, for plaintiffs in error.
    1. Can an open account be transferred by delivery, or indorsement, so as to make it the subject of set-off? The case of Glass v. Moss, 1 How. 519, is believed to be conclusive upon this point.
    2. It was assumed below, and may again be repeated, that, admitting Smith took the boy, Jerry, it was a trespass for which ce was the remedy, and that assumpsit.would not lie. The doctrine that you may waive the tort, and rely upon the implied assumpsit, is too w'ell understood to admit of discussion at this day. Chit, on Cont. 18, and note 1 and 20.
    
      
      Lindsay and Copp, for defendant in error.
    J. In Ellzey et al. v. Stone, 5 S. & M. 21, the court say, “ where the facts of the case are fairly left to the consideration of the jury, the verdict will not be disturbed, unless a great preponderance of testimony appears against it.”
    Whether it was right or not to leave the facts of this case to the jury, we shall presently inquire; but that they were left fully, and, in the sense of the court, fairly, to the jury, the record discloses.
    2. The court, in Glass v. Moss, 1 How. 519, say, that it is not necessary that an assignment should appear on a promissory note, to enable the holder to tender it in offset. The court use this language. “ The possession of a promissory note, is prima facie evidence of ownership, and I take the rule to be equally applicable, whether it has been transferred by indorsement or delivery. The instrument introduced as an offset, is clearly a promissory note, and being transferred by delivery, Lemuel C. Glass acquired the beneficial interest in it, and had a right of action. That an action on the instrument must have been brought in the name of Joel Glass, for his use, cannot alter the case.”
    The court here put it expressly, as we think, upon the ground that the property in the note was legally vested in the holder.
    Does the sarfcte principle apply toan open account? We have never seen such an authority in any reported case, and do not think it can be drawn from this case of Glass v. Moss, or any statute of the state.
    3. The set-off is not allowable for another reason. This account is for unliquidated damages, and it is a settled principle, that unliquidated damages cannot be set-off, either in law or equity, against a legal demand. Webster v. Couch, 6 Rand. 519; Murray v. Toland, 3 Johns. Ch. R. 575; Howlitt v. Strickland, Cowp. R. 57; Bank v. Hoioard, 13 Mass. 235; Goodwin v. Cunningham, 12 lb. 193; Braynard v. Fisher, 6 Pick. 355. And demands must be ascertained, and not a trespass or tort. Gibbs v. Mitchell, 2 Bay’s S. C. R. 120; Adams v. Manning, 17 Mass. 178; Edwards v. Davis, 1 Halst. 394; Weigdll v. Waters, 6 T. R. 488. And it must be a legal and not an equitable demand. Wake v. Tinkler, 16 East, 36.
    4. One of two defendants cannot set-off a debt due to him alone from the plaintiffs. Walker ¡v. Leighton, 11 Mass. 140; Porter v. Neckervis, 4 Rand. 359; Kinnerly v. Hossack, 2 Taunt. 170.
    This account is assigned to Hardy alone.
   Mr. Justice Thachek

delivered the opinion of the court!

This was an action of assumpsit upon a promissory note, on which Whitaker and Hardy were makers, and Smith indorser. Whitaker and Hardy, the plaintiffs in error, pleaded payment, and filed as a set-off, a claim assigned by one Prewett to Whitaker against Smith for damages, in consequence of Smith’s alleged conversion of a slave belonging to Prewett. The jury found in full for the plaintiff below, upon which defendants there claimed a new trial, and upon its refusal bring the cause here.

Without referring to other reasons, it is enough to say that this was an attempt to set off unliquidated damages against a fixed money demand, which is well settled to be impossible at law.

Judgment affirmed.  