
    Wake et al. vs. The Bank of the Commonwealth.
    If a partial payment be' made upon a note, which is after-wards paid in fall, or merged in a renewal, without deduction of the partial payment, 'that may then he considered as so much money had and received bythe payee, to the use of the party who paid it; and he may maintain assumpsit for it, or may plead it as a set-off, pro tanto, against the new note. It cannot• be deemed a paymentonthenew note,not executed until afier the money was paid.
    [Mr. Owsley for Plaintiffs: Mr. Crittenden for Defendants.]
    From the Circuit Court for Jessamine County.
    
      November 6.
   Chief Justice Robertson

delivered the Opinion of the Court.

To a petition and summons,- brought by the-Bank of the Commonwealth against Wake, as principal, and others as his sureties, on a note for six hundred and nineteen dollars, he pleaded that the note sued on was only a renewal of a former note, on which he had paid seventy five dollars, for which he never had received any credit J and which, therefore, he pleaded as a set off, pro tanto. The circuit court sustained a demurrer to the plea, and thereupon gave judgment for the whole amount of the note.

The only question now presented, is, whether the matter pleaded was pleadable as a set off: and it is the opinion of this court that it was.

If, instead of giving a new note, the obligors had paid off and taken in the old note, without being credited for the seventy five dollars which had, as averred, been paid, that sum might then have been deemed so-much money received by the Bank to the use of the obligors, and for which an action of indebitatus assumpsit,5 might have been maintained. The new note having extinguished the old, the seventy' five dollars could not have been pleaded gs a payment on the new note. And consequently, if, as alleged in the pleá, the seventy five dollars were inadvertently omitted in calculating" the amount for which the new note should be given, the Bank should account for the sum so omitted ; and it seems to us that assumpsit might be maintained for it, and, consequently, that it is a fit subject matter of a plea of set off.

Wherefore, the judgment must be reversed, and the1 eause remanded, with instructions to overrule-the d©imarrer to the plea of set off.  