
    * Daniel Walker versus John Leighton and Elisha James.
    In an action against two defendants upon a simple contract, a demand of one ol them against the plaintiff cannot be given in evidence by way of set-off.
    This was an action of assumpsit on a joint and several note of the defendants to the plaintiff, dated August 25, 1808, for 25,000 feet of merchantable pine boards, to be delivered at the lower bridge in Kennebunk, by the last day of July then next.
    At the trial, which was had upon the general issue, at the sittings here after the last May term, before Jackson, J., it was admitted by the plaintiff that the note was given for the sole and proper debt of Leighton, and in part satisfaction of an execution in favor of Walker against him, issued on a judgment for 585 dollars 91 cents, December term, 1805, and endorsed upon said execution, in part satisfaction thereof, on the day of the date of the note sued. On the said note were the following endorsements in the hand-writing of Leighton, viz.: “ Received of John Leighton eight thousand and four hundred of merchantable pine boards, in part of the within note. Wells, March 18, 1809.” “ Received two thousand more at the same time.”
    This note and the endorsements being read to the jury, the defendants stated that all demands had been settled between the parties by the said Walker and Leighton, and that this note was discharged; and that, in exchanging papers after the settlement, this note remained, by mistake, in the hands of Walker. The defendants then read to the jury a general receipt from Walker to Leighton, dated March 18, 1809, acknowledging the receipt of one dollar, in full of all demands, and witnessed. This receipt was in Leighton’s handwriting. They also read the execution above mentioned, on which vvas this endorsement: “ Received of John Leighton, in full of the vithin execution. Wells, March 18, 1809. Daniel Walker.”
    
    The witness to said receipt, being called by the defendants, tes< tified that, on the said 18th of March, 1809, at a Mr. [ * 141 ] * Clark’s store in Wells, he saw said Walker and Leigh-ton together; they said they had been a good while settling their accounts, but they had then got through. A similar receipt by Leighton to Walker, and of the same date, being all in Leighton’s hand-writing, was read to the jury. The witness did not recollect seeing the note, nor the execution, at that time; nor did he recollect that he had witnessed the receipt, until after the commencement of this action, and then only from seeing his name as a witness.
    On its being intimated by the judge who sat in the trial, that the said receipt was not conclusive evidence in favor of the defendants, they offered to prove to the jury the delivery of lumber and timber by Leighton to Walker, between the 1st day of July, 1804, and the 1st day of November, 1809, (being the same charged in an account filed by Leighton in this action,) to the value of 709 dollars, and that no allowance was made for the same by Walker on the notes, upon which the said judgment, in December, 1805, was rendered. They also offered to prove to the jury the account filed by way of set-off as aforesaid.
    The judge refused to admit any evidence in support of said account, it being a demand of one of the defendants only against the plaintiff. He also rejected the evidence offered to prove the delivery of the said lumber and timber, unless the defendants should also prove that those articles were taken into consideration by the parties at the time of signing the receipts, in March, 1809. The judge declared that the defendants might adduce any legal evidence, to show that the said receipt of March, 1809, was intended by the parties to include and discharge the note in suit; but that evidence of this demand, by one of the defendants against the plaintiff, unconnected with any additional evidence, could not be admitted for that purpose.
    The counsel for the defendants filed exceptions to the said opinion and direction of the judge, as against law; and a verdict being returned for the plaintiff, the action was continued for the consideration of the said exceptions.
    * Holmes, for the defendants,
    acknowledged that, if the subject of the plaintiff’s demand had been the proper debt of both the defendants, he could not controvert the positions taken by the judge at the trial. But here the whole debt was Leighton’s alone; the whole transaction was between him and the plaintiff; and the case comes, therefore, within the spirit, if, indeed, not within the letter, of the statute.  It was like the case of a surviving partner. Payment by one joint promisor must be presumed payment in discharge of the promise, unless a different application or appropriation were proved to be in the understanding of the parties. The plaintiff could not be injured by this set-off, since, if allowed here, Leighton would be barred from any action for the same cause. Leighton’s receipt to the plaintiff was not conclusive, an 1 the whole evidence ought to have been submitted to the jury, to judge of its effect.
    
      Mellen for the plaintiff.
    
      
      
        Stat. 1793, c. 75, § 4.
    
   Per Curiam.

The evidence offered for the defendants was irrelative, and impertinent to the issue on trial; and evidence is as well to be rejected for its impertinence as for its incompetency

Judgment according to the verdict. 
      
      
         Babbington on Set-off, 37.— Selw. N. P. 157, 8th ed. — Exrs. of Bourne vs. Thomson & Al.— Coxe's N. J. R. 2.
      
     