
    *William Robinson assignee of Alexander Armstrong against Benjamin Beall and Henry Russel.
    Bond by A and B to C assigned to D. A joint bill by E and C assigned after the death of E to A, before assignment to D, is a good set off against the bond sued by X).
    Case stated for the opinion of the court.
    On the 20th July 1800 the present suit was commenced on a bond given by the defendants to Armstrong, dated the 6th May 1799, and duly assigned to the plaintiff on the 30th June 1800.
    The defendants plead payment with notice of a set off. They claim a defalcation of a joint bill by William Cameron (since deceased) and Alexander Armstrong aforesaid, to Andrew Baine, for the payment of 36I. 5 s. 6d. on the 9th October 1799, and duly assigned to the said Benjamin Beall on the 28th February 1800. Cameron the co-obligor died before the times of either of the assignments.
    The question submitted to the court was, whether the bill in the hands of Beall the defendant, ought not to be allowed as a set off against the bond in the hands of Robinson the plaintiff ?
    
      Mr. Kennedy for the plaintiff
    objected, that the bill intended to be defaulked, was joint and between other parties, viz. Cameron and Armstrong as obligors, and Baine as obligee. The demands .must be mutual, and such as are due in the same right. Bull. 175. Espin. 239. No set off is allowed, where the demand is in miter droit. Ib. 1 Vez. 208. 2 Espin. Rep. 594. It is true, there are exceptions in the cases of surviving partners. A debt due to a defendant, as a surviving partner, may be set off against a demand on him in his own right. 5 Term Rep. 493. Because, the defendant might have declared against the plaintiff for this demand, and also for any sum due to him separately, if any such had been due. Ib. 3 Term Rep. 433. So a debt due from the plaintiff as surviving partner, to the defendant, may be set off against a debt due from the defendant to the plaintiff in his own right. 6 Term Rep. 582. But these cases are distinguishable from the present. Besides, this is the case of a bona fide assignment.
    Mr. Lyon for the defendant
    answered, that the plaintiff by his assignment took the bond subject to all the equity and defalcation, which it carried in the hands of the obligee. Cameron died before his bill was assigned in February 1800, and the remedy by Beall the assignee was transferred solely as against Armstrong. The joint nature of the bill was destroyed by Cameron’s death. And Beall possessing this demand against *Armstrong antecedent to the assignment of the 'bond by the latter to the plaintiff, must be entitled to a defalcation. Armstrong’s assignment would not put Beall in a worse situation than he was before. *268]
   By the Court.

There can be no doubt, but circumstanced as this case is, the hill is a good set off against the bond.  