
    *Green and Another v. Buckner’s Adm’r.
    February, 1835,
    Richmond.
    (Absent Brooke, J.)
    Payment — Proof of — Demurrer to Evidence — Joinder in Demurrer — Case at Bar. — In debt on bond by B. against G. and S. issue is joined on tiie plea of payment; deiendants to prove payment, adduce evidence that G. put money into hands of a third person to pay the debt, who informed 11. that he had the money to pay off the bond; but B. declined to receive it, saying he owed S. the other obligor more money, without saying that the debt between him and S. had been settled; plaintiff demurs to this evidence of payment, but court refuses to compel defendants to join in the demurrer; and then there is verdict and judgment for the defendants: Held, 1. it is error to refuse to compel a joinder in demurrer to evidence, where the evidence is not plainly against the demurrant; 3. the evidence offered for the defendant, was not proof of payment; and 3. judgment given for defendant, being for this cause reversed, judgment for the debt demanded was rightly given for the plaintiff.
    In debt on a bond for 400 dollars executed by Green and Street to Buckner, brought by Buckner in this lifetime, against both obli-gors, in the county court of Culpeper, the defendants pleaded payment, and the issue was made up on that plea. Buckner died pending the suit, and it was revived by his administrator. At the trial, the plaintiffs demurred to the evidence adduced by the defendants to prove the payment of the debt, which was as follows: 'The plaintiff having given the bond in evidence, the defendants proved by a witness, that the defendant Green having sold a slave, and raised money enough from the sale to pay off the bond, put the money into the hands of the witness for the purpose; that the witness met with Buckner, and told him he had the money to pay off the bond; but Buckner declined to receive it, saying he owed the other defendant Street a larger amount, though he did not say, that the debt between him and Street had been settled. The defendants ^refused to join in the demurrer to evidence; and the county court refused to compel them to do so. The jury found a verdict for the defendants, and the court gave them judgment. The plaintiff applied to the circuit court for a supersedeas, which was allowed. The circuit court held, that the county court erred in not ■ compelling the defendants to join in the demurrer to evidence, and therefore reversed the judgment. The cause being retained, by consent, in the circuit court, and the defendants then joining in the demurrer, the court held, that the law upon the demurrer was for the plaintiff, and proceeded to enter judgement for him, for the debt demanded in the declaration. And then, upon the petition of Green and Street, a judge of this court allowed a supersedeas to the judgment of the circuit court.
    Harrison, for the plaintiff in error.
    R. T. Daniel, for the defendant.
    
      
      Demurrer to Evidence — Joinder in Demurrer — When CompeKed. — Tf on the trial of a cause, the evidence is documentary, and presents a question of law which is not plainly against the defendant, he is entitled to demur to the evidence, and the court should compel the plaintiff to join in the demurrer. Boyd v. City Savings Bank. 15 Gratt. 503, citing the principal case. The principal case is cited and approved in Trout v. Va. & Tenn. R. R. Co., 33 Gratt. 637; Peabody Ins. Co. v. Wilson, 29 W. Va. 535, 3 S. E. Rep. 893. See foot-notes to Rohr v. Davis, 9 Leigh 30; Trout v. Va. & Tenn. R. R. Co., 23 Gratt. 619; and monographic note on “Demurrer to the .Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
   BROCKENBROUGH, J.

There was no reason why the defendants should not have been compelled to join in the demurrer to evidence. The evidence demurred to, was not plainly against the demurrant, and therefore does not come within the influence of the decisions of Thweatt v. Finch, 1 Wash. 217; Wroc v. Washington, Id. 357, and Dunbar v. Beale, 5 Munf. 24. The evidence though parol, was not loose and indeterminate, but explicit, and admitted of no variance. It was therefore, within the rule laid down by judge Roane, in Hyers v. Wood, 2 Call 574. I am of opinion, that the circuit court, in this case, very properly required the defendants to join in the demurrer.

Let us then look into the demurrer, and see whether the evidence adduced by the defendants, admitting it all to be true, was sufficient to support the issue joined between the parties. That issue was whether the debt *had been paid. The tender and refusal of monej", is not sufficient proof of payment; but even in that, the proof was defective, for there was no legal tender. Nor was the reason assigned by Buckner, for refusing to receive the money, proof of an acknowledgment that he had been paid the debt. He said, that he was then indebted to the other defendant, Street, in a larger amount. The most that could be made of it was, that one of the defendants, Street, had a set-off if he chose so to consider it, against the debt, to a larger amount than the plaintiff’s demand against the two obligors. That was not a sufficient proof o* payment. A set-off is not a payment; and to authorize a set-off to be given in evidence under the plea of payment, it is necessary, under our statute, 1 Rev. Code, ch. 128, (j 87, p. 510, that the defendant should file an account, stating distinctly the nature of his set-off, and the several items thereof. If this be not done, he is not entitled to prove his set-off. The evidence which was given, was, therefore, not sufficient to support the issue in this case; which was, whether the debt was paid. Another objection is, that the set-off given in evidence, was of a debt due from the plaintiff to one of two joint and several obligors, which cannot be set off against the demand due from the two obligors. Porter v. Nekervis, 4 Rand. 359; Ritchie & al. v. Moore, 5 Munf. 396. Again ; it was given in evidence that Buckner did not say that the debt between him and Street had been settled, nor was any settlement between them produced. It cannot be fairly inferred from Buckner’s declaration, when he declined receiving the money, that he acknowledged, that a debt fixed and determined by an obligation, was paid off by an unsettled debt. I am of opinion, that the judgment of the circuit court should be affirmed.

CARR, J.

I concur. The facts stated in the demurrer to evidence, do not amount to paj'ment, nor are they *such as to authorize a jury to draw the inference of payment. The mere fact, that the obligee, when told by the witness that he was ready to pay him, refused to receive the money, saying that he owed Street more money, cannot assuredly amount to proof of actual payment: it only evinced the intention of the obligee, at the moment, which he might change at will. It required a further proceeding to make it operative; a proceeding, which, at the same time that it discharged the bond, would extinguish so much of the debt due from the obligee to Street, as the bond amounted to. Suppose Street had sued the obligee for his debt, the defendant, in that case, could not have supported the plea of payment by the same evidence here demurred to. Yet it was as much a payment of the one debt as the other. The bond remained still in the obligee’s hands; which would not have been the case, if any actual settlement had taken place.

CABETIv, J., and TUCKBR, P., concurred.

Judgnient affirmed.  