
    Larrimore and Others v. Heron, Receiver of the Savings Bank of Indiana.
    
      Monday, June 10.
    
      A. drew a bill of exchange upon the firm of A. <$• Oo., in favor of 0., which O. indorsed to A. «J- Oo., and they to the bank. Suit by the receiver upon the bill. Answer by A. and 0., that the bill was executed and discounted for the use of A. <‡- Go., and that 0. was only an accommodation indorser; that at the time the bill became due, and before the appointment of the receiver, the bank was indebted to A., for the use of A. <$■ Co., in the sum of $250, for money had and received for their use : and in a further sum of $250 for money deposited by one T., for the use of A. <$• Oo.
    
    
      Held, that the answer substantially alleged the indebtedness to be due from the bank to A. <† Co.
    
    
      Held, also, that as A. <$• Go. were the principal debtors, an indebtedness from the bank to them could be set-off against the bill sued on; and the statute allows the defense to be made by the principal or any other defendant.
    APPEAL from the Fayette Circuit Court.
   Worden, J.

This was an action by Heron, as receiver of the Savings Banlc of Indiana, duly appointed by the Court; • against Allen V. Larrimore, Elisha Vance and George W. ■Dale, upon a bill of exchange drawn by Larrimore upon Larrimore do Dale, in favor of Elisha Vanee, and by Vance ■ indorsed to Larrimore dé Dale, and by the látter indorsed to the bank. Process not having been served upon Dale¡ the cause was continued as to him.

Larrimore and Vance pleaded, among other things, that the bill was made, executed, and discounted in the Savings Bank, for the use and benefit of Larrimore do Dale, and, that the defendant Vance was only an indorser thereof for their accommodation. That about the time the bill became due, and before the appointment of the plaintiff as such receiver, the bank was, and still is, indebted to Larrimore, for the use of Larrimore dé Dale, in the sum of $250, for money theretofore had and received by the bank for the use of Larrimore da Dale ; and in the sum of $250, for money deposited in the bank by Larrimore for the use of Larrimore dé Dale ; and in the sum of $250, being a balance of $600 before that time deposited in the bank by one Talbott for the use of Larrimore da Dale, which sums Larrimore offered to set off. Demurrer sustained to the plea; exceptions, and final judgment for the plaintiff.

This plea we think substantially good. It is, as the counsel for the appellee says, a kind of nondescript in pleading, in alleging an indebtedness of the bank to one man, for the use of himself and another. But the averments specifying the particulars of the indebtedness show, and we think substantially allege, the indebtedness to be to Larrimore do Dale. Indeed, an indebtedness to Larrimore for the use of Larrimore dé Dale, seems to amount to an indebtedness to Larrimore do Dale. Under the code they would both have to sue upon it, and we think were Larrimore da Dale alone sued, and both before the Court, they could set off the indebtedness.

/ This is a mere formal matter, and we pass to the more substantial objection urged against the plea. It is urged that the law does not allow a set-off in such cases.

The statute provides, that “ In all actions upon a note or other contract against several defendants, any one of whom is principal and the others sureties thereon, any claim upon contract in favor of the principal defendant, and against the plaintiff or any former holder of the note or other contract, may be pleaded as a set-off by the principal or any other defendant.” 2 R. S., § 58, p. 40.

Elisha Vance, for the appellants.

Jno. 8. Reid, for the appellee.

"We are unable to perceive why. this case is not within the spirit of the statute. The facts as alleged are substantially these: Larrimore do Dale wanted money. Larrimore drew his bill upon La/rrimore do Dale, in favor of Vance, who indorsed it to Larrimore dk Dale, who indorsed it to the bank, and received the proceeds. Thus Larrimore <& Dale became the principal debtors. Vance is only liable as a remote indorser. Although all may be joined in a suit upon the bill, yet as Larrimore c& Dale are the principal debtors, an indebtedness from the bank to them may, under the statute, be set off. The statute allows this defense to be made by the “ principal or any other defendant.”

Per Curiam.

The judgment is reversed, with costs. Cause remanded, &c.  