
    JANUARY TERM, 1846.
    Joseph Bullard et al vs. Washington Dorsey.
    Where a rule for security for costs has been allowed in the court below, and the record does not show that any motion, to dismiss was made below for want of security, or that the security required by the rule was not given, and the cause progressed to judgment after the rule was taken ; held, that this court would not disturb the judgment.
    There is no such plea given by our law as set-off, and a demurrer to such a plea is therefore properly sustained.
    A set-off must be mutual, that is, between the same parties, or, as expressed in our statute, the parties must “be dealing together;” otherwise it cannot be allowed; where, therefore, D. sued B. & M. on a note payable to E, or bearer; and the defendants proposed to prove that E. transferred the note to W., and while W. was bearer of it, he was indebted .to M. in a larger amount by note, and had promised that M. should be allowed to credit the note sued on, on the note held by M.; held, that the evidence was inadmissible; the individual debt of W. to M. could not be set off against the joint debt of B. & M.
    
      Clayton, J. dissenting, and holding that under our statute, making all joint liabilities, whether of partners or others, joint and several, it was a proper subject of set-off.
    Where a plaintiff sues upon a joint note, the defendants cannot set off a debt due by the plaintiff to one of the defendants in his own right. Clayton, J. dissenting.
    In error from the Hinds circuit court; Hon, John H. Rollins, judge.
    Washington Dorsey sued Joseph Bullard and Philip Myers in an action of assumpsit on a note in these words :
    “$476. On or before the first day of January, A. D. 1840, I promise to pay David Ellison or bearer, four hundred and seventy-six dollars, for value received. August 13, 1838.
    Joseph Bullard.
    Philip Myers.”
    The defendants plead, 1. non assumpsit; 2. a special plea of set-off; that Ellison indorsed and delivered the note sued on to Kinchin Wilkinson, who, being the holder and bearer, was indebted to the defendant, Myers, by note of a larger amount, and previous to the commencement of the suit, agreed to set off the note sued on, on the note held by Myers; 3. a plea of payment, with notice of set-off of the debt due by Wilkinson to Myers.
    The suit was instituted on the 19th of May, 1842. The record recites, that “at the December term, 1842, on the fourth day of the term, it being the 22d day of December, 1842, upon motion and affidavit filed, ordered that plaintiff in this case give security for costs within sixty days, or this cause will be dismissed.” No other entry appears of record touching this motion for security for costs.
    At the June term, 1843, the plaintiff demurred to the defendants’ second plea, and the demurrer was sustained. At the March special term, 1844, a jury was empanelled, and the cause submitted to them, and on the trial the defendants offered as a set-off the note of Kinchin Wilkinson to Myers for six hundred dollars, and in support of the off-set proposed to prove that the note sued on never was indorsed by the payee to the plaintiff, but indorsed by him in blank and delivered to Wilkinson, the maker of the note offered as a set-off, and that Wilkinson had transferred it to the plaintiff, who had filled up the indorsement as a special one to himself; that while the note sued on was in Wilkinson’s possession, Myers was the holder of his note for the six hundred dollars; of which fact Wilkinson had notice; and that it had been understood and agreed between Wilkinson and Myers, that the one note should be a set-off against the other; but Wilkinson, in violation of his agreement, assigned the note of the defendants to the plaintiff; that, by an arrangement between Myers and Bullard, the bur-then of paying and discharging the note sued on had been devolved on Myers, and for that end he had reserved the note of Wilkinson. The court below refused permission to introduce the testimony, and rejected the set-off. The defendants filed a bill of exceptions thereto, and have brought the case to this court.
    
      J. N. Mitchell, for plaintiff in error,
    contended,
    1. That the rule for security for costs was in itself a dismissal of the case, if the rule was not complied with ; and that it required no further action of the court.
    2. That the plea of set-off, though perhaps not technically drawn, was a good plea. 2 Bay’s Rep. 351 ; 2 Yerg. Ill; 1 Bay, 437; H. & H. 373.
    3. That the court erred in not permitting the set-off under the plea of payment and the proof offered. 1 Bay, 437; 2 Yerg. 111.
    
      Amos R. Johnston, on the same side.
    1. The record shows a rule for security for costs; and does not show a compliance therewith; the presumption is, the rule was not complied with, and therefore the cause was out of court. How. & Hutch. 585, 586.
    2. The second plea was a good plea, and a bar to the action. How. & Hutch. 373, 374.
    
      3. The evidence, should have been admitted under the plea of payment. Dorsey took the note subject to the disabilities placed upon it by the arrangement between Wilkinson and Myers.
    Shellon, for defendant in error.
    1. The position with reference to the motion for security for costs is not tenable, because, 1. the bond given for costs on compliance with the rule is no part of the record. 2. The rule was never made absolute. Mississippi & Alabama Railroad Company v. Ballard, MS. 3. The defendants, by going to trial without objection, waived the right to dismiss, if it existed. Ibid.; and 3 S. & M. 38.
    2. The plea of set-oif is bad in this state. 4' How. R. 142; 2 S. & M. 597; 1 Blackf. R. 188 ; Ibid. 367.
    3. The evidence offered in behalf of the plea of set-off was inadmissible. 1. A separate debt cannot be set off against a joint. 11 Term. 204; 8 Watts, 262; Ibid. 406; 18 Pick. 403; 5 Blackf. 37; Ibid. 146; Ibid. 306; Ibid. 585; 2 Leigh’s R. 493. 2. A set-off of a demand on an indorsee is not allowed against a subsequent indorsee. H. & H. 615; 2 John. R. 150-155; II. & H. 373, § 12; 3 Term. R. 540. 3. This was not set off against the payee. 4 S. & M. 87; 3 Term. 540; Harrison R. 222; Baily on Bills, 3, n.; Archbold’s N. P. 97, 98, 100, 101, 131, 132; 10 Barn. & Cress. 558, (21 Eng. Com. Law Rep.) ; 9 Adol. & Ellis, 275, (36 Eng. Com. Law); 10 Mees. & Weis. 696; 6 Cow. 693; 3 Wend. 13; 5 Wend. 342.
   Mr. Chief Justice Si-iarkey

delivered the opinion of the court.

Dorsey brought this suit in the circuit court on a promissory note made by the plaintiffs in error,, payable to one Ellison or bearer, and recovered judgment, which the plaintiffs now seek to reverse.

The first ground relied on for a reversal, is that the court erred in refusing to dismiss the cause for want of security for costs. If this were even good cause for reversing the judgment, there is a very conclusive answer to it in the present instance, which is, that for anything that appears on the record, the security may have been given. It does not appear that any motion was made to dismiss for want of security for costs, or that such security was not given as required by the rule.

The second ground is that the court erred in sustaining a demurrer to defendants’ second plea. It is a plea of set-off, in which it is averred that Ellison, the payee, indorsed the note in blank to one Wilkinson, who thereby became the owner, and that Wilkinson was at the time indebted to Myers, one of the defendants in the court below, on a promissory note for a larger amount than the note sued on, and had agreed with and promised Myers that the amount of the debts should be set off. There is no such plea given by our law as set-off, and the demurrer was therefore properly sustained.

• But the .defendants had also filed the plea of payment, and offered to prove under it that Ellison had indorsed the note to Wilkinson, who transferred it to Dorsey without indorsement; that at the time Wilkinson was holder of the note sued on he was indebted to Myers by note for a larger amount, and that he had promised that Myers should be allowed to credit the amount of the note sued on, upon the note of Wilkinson, held by Myers. The note of Wilkinson was also offered in evidence, but the defendants were not permitted to(make this proof. If the note of Wilkinson to Myers alone was a good set-off against the note of Bullard & Myers, the testimony should have been admitted.

By the settled construction of the acts of 2 Geo. II. and 8 Geo. II., the debts must be between the same parties to constitute a good set-off; they must be in the same right, although they need not be of the same dignity. In an action by two persons, the defendant cannot set-off a debt due him by one of them. Chitty on Contracts, 328. The American decisions under the several statutes of set-off, are generally in accordance with the English decisions. Walker v. Lughton & James, 11 Mass. Rep. 140; Ritchie & Wales v. Moore, 5 Munford, 388; Wheeler v. Raymond, 5 Cowen, 231; Wolf v. Washburn, 6 Cowen, 261; 5 Cranch, 34; 4 Randolph, 359.

The language of the act of Geo. II. is that mutual debts may be set off, and if the debt is not between the same parties, it is said to lack mutuality. Our statute is that “If two or more dealing together, be indebted to each other upon bonds, bills, &c.” the debts may be set off. - This language would seem to require the same mutuality of indebtedness that the English statute does. The parties must be dealing together, that is, there must be mutual dealings. The dealings are not mutual unless they are between the same parties, and if not, there is no dealing between them. A note or debt due from A to B, does not constitute a dealing between A and C. Under a different interpretation our statute would seem to lead to difficulties. If 4he set-off be greater than the plaintiff’s demand, he is'entitled to a certificate,and judgment in his favor. If there be two defendants and the set-off is due to one of them only, does he obtain the judgment, or must it be rendered in his favor jointly with his co-defendant1? The court could not, I apprehend, sever them, and thus the plaintiff in the action would become judgment-debtor to a man with whom he had never contracted. On our construction of the statute the note due to Myers alone was not a good set-off against the joint note of Bullard & Myers, and the court correctly ruled out the evidence.

Judgment affirmed.

Mr. Justice Clayton

delivered the following dissenting opinion :

The effect of our several statutory provisions, is to makealljiomi liabilities, as well of partners as of others, joint and several. This makes a change in the law of set-off, so far as to make all such the subject of set-off. See Babington on Set-off, 17; Fletcher v. Dyke, 2 T. R. 32. In this case Ashhnrst, J. said, “ A joint and several bond is the separate debt of all the obli-gors, and therefore may be set off against either.” A set-off is but a cross action. If therefore either of the parties might be sued separately, I do not see why the claim might not be made the subject of set-off against either.

But as the majority of the court have come to a different conclusion, upon full examination, it only remained for me to put down the reasons of my dissent.  