
    Carter v. Berkshire.
    In debt against A. and B., the process was returned served on the former and “not found ” as to the latter. Held, that the plaintiff, to recover against A., must have a joint cause of action against him and B.
    
    In such case, a plea of set-off by A. of a debt due to him alone, or of a debt due to B. alone, from the plaintiff, is bad on demurrer; but it is not a nullity, nor is it so objectionable that it should be set aside on motion.
    If the plaintiff in a justice’s Court having obtained judgment, appeal, and fail to recover at least five dollars more than the justice’s judgment, the appellee will be entitled to costs.
    ERROR to the Henry Circuit Court.
   Blackford, J.

This was an action of debt commenced by Garter against John D. Fooshee and Ralph Berkshire, before a justice of the peace. The process was served on Berkshire and returned “not found” as to Fooshee. The suit was founded on a note, executed by both the defendants, for the sum of thirty-six dollars and seventy-five cents. Judgment by the justice against Berkshire for nine dollars and ninety cents and costs. The plaintiff appealed.

In the Circuit Court, the plaintiff' moved to set aside one of Berkshire’s pleas. This plea states that the note was given to the plaintiff by Fooshee, and Berkshire as his surety; that the plaintiff owed Fooshee a certain sum for goods sold and delivered, work and labour, &c. The motion was overruled. Judgment in the Circuit Court for the plaintiff for three dollars and the costs before the justice, and judgment for the defendant for the costs in the Circuit Court.

The plaintiff below is the plaintiff in error.

To support this suit, wdiich is brought against Fooshee and Berkshire, the plaintiff must have a cause of action against both, though Berkshire alone was served with process. Taylor v. Claypool, 5 Blackf. 557. It follows that the defendant, Berkshire, could not set off a debt due to him alone, or a debt due to Fooshee alone, from the plaintiff. The only debt that can be set off in such action, is a debt due from the plaintiff to Fooshee and Berkshire jointly. The plea, therefore, is no doubt bad, and might have been demurred to; but still it is not a nullity, nor is it so objectionable that it could be set aside on motion.

Cf. H. Test, for the plaintiff.

S. W. Parker, for the defendant.

The judgment against the plaintiff for costs is right, as he did not recover at least five dollars more than the judgment appealed from. R. S. 1843, p. 892.

Per Curiam.

The judgment is affirmed with costs.  