
    
      Jonathan Ferris and Elijah Ferris vs. Nathaniel Burton.
    
    'That the Court will decree an offset of demands .in reality mutual, though not nominally so, where equity requires it,
    ..But these demands must have been rendered cer.tain and liquidated by judgp ment, or decree of court, or by confession of defendant in his answer.
    The object of the original bill of complaint of the orator, Jon-r aihan Ferris,-was to-enjoin certain suits pending, in favor of said Burton against the said Jonathan Ferris; and.to compel an offset .of said demands, sued by said Burton, against certain demands of these orators. On a -partial hearing upon a demurrer to the ..original'bill, and learning, incidentally, the .grounds .of defence disclosed 'in the answer of Burton provisionally interposed, the Court intimated a difficulty in getting at the merits, without joining Elijah Ferris as complainant; .and also a difficulty in the defence without a cross bill, bringing Andrew Bostwiclc before the court, who seemed to have been the person, with whom Burton dealt, and against whom alone he -originally made his •changes; and who might probably have an interest in presenting claims against Burton to diminish his claims. Upon these suggestions, from the court, the cause was continued, without objection, with leave for the orator to amend, and with leave for Burton to bring a cross bill, «should he elect so to do, by times specified in the entry of the continuance. The bill was then a_ mended, pimngElijahFerris as complainant,land Burton filed his answer to the amended bill, and also Sled a ¡cross bill against said Jonathan and Elijah Ferris, charging the substance of .the facts ¡set forth in his answer to .the amended bill, and praying for a discovery with regard to those facts.; also praying that Andrew Bost-wick might be made a party to both bills. But Burton afterwards .abandoned the pursuit of Bostwiclc, as defendant in the cross bill, and both parties used histestimony, taken in chief. Jonathan and Elijah Ferris severally answered the cross bill. Burton also demurred to the amended bill, and pleaded the statute of limita-tations, and all the answers were' traversed, and the testimony taken and published by both parties, and the cause set down for a hearing upon said bills and answers, and traverse of the same. — - Upon an inspection of the claims, on both sides, as presented in ■said bills and answers, they appear as follows: The orators had been partners together in trade and merchandize twenty-five years or more, and, from 1807 to Sept. 1809, they were secretly partners of Andrew Bostwiclc, who is mentioned above, and who was then trading in merchandize, in 'Swanto% apparently on his ¡own account. In Sept. 1809, the orators and Bostwiclc dissolved •their partnership by mutual agreement •; the said Bostwiclc to pay all the debts due from the firm, and have all the avails of their trade •as fully as if theoratorshad never been his partners. But the or-ators were holden for a large amount of said debts, which they 'in •the sequel, were obliged to pay, and did pay, on account of Bosf-
      wick's neglect. That on the thirtieth day of January, 1810, the said Nathaniel Burton purchased of said Bostwick all the goods then in his store at Swan* ton, amounting to seven thousand dollars or more, and gave his notes for the same : among which notes were four of one thou- \ sand dollars each, made payable to said Bostwick, or order, at different periods, but all in 18 months. That said Bostwick on the same day assigned said four notes to the orators. They forthwith gave notice to said Burton of this assignment, and requested him to pay said notes to them, when the same should become payable which he promised he would do.
    As soon as Bostwick had sold out his goods to Burton, he embarked in the lumber-trade, and, in carrying it on, called upon Burton for goods from the same lot, at retail, and drew orders upon him which were answered t and Burton paid particular debts for Bostwick till his account was swollen to the amount of seven or eight thousand dollars: all of which he charged to Bostwick, considering him his sole debtor, and not suspecting the orators to be partners with him. Bostwick soon sustained such heavy losses in his lumber business, that he failed. Afterwards, Burton obtained such information of the former partnership of the orators and Bostwick, and supposing the same still to continue, that he brought his action on book account against the orators and BosU wick, jointly, to recover his said debt charged against Bostwick, His writ was served on said Jonathan Ferris only, a non est return being made as to Bostwick and Elijah Ferris. He so established the partnership that he recovered judgment against said Jonathan Ferris for above five thousand four hundred dollars. — - Some of his claims were rejected, as not being proper items of book charge, and he brought an action of assumpsit for them against the same three, and recovered against said Jonathan alone, as before, about two hundred and eighty eight dollars. In the mean time, the said Jonathan and Elijah, the orators, had brought a suit upon the two ol said notes first payable, as assignees of said Bostwick; and had recovered judgment against said Burton for the same, amounting to about two thousand one hundred and fifty dollars 5 and had taken out execution, and caused said Burton to be committed to prison on the same; and he had pro-cured bonds to the sheriff for the liberties of the prison 5 and had depaited fro in said libeniés, and forfeited his bond; and the sheriff had deceased without assigning said bond to the orators : and no suit had ever been commenced on the same. Said Burton, at the commencement of the original bill,- bad become poor, and had little or no property, except his said two judgments, and his other claims against said BostwicJc. Said Bostwick, from the time of his failure in the lumber concern, had remained wholly destitute of property. There was on the hearing no great controversy about the truth of the facts thus far recited, so far as they relate to the merits of these suits. But other matters, to be named, were litigated in the allegations and proofs. Said Burton contended, that two of said four notes were only assigned to the orators, as collateral security for their signing a bank note, at the Vermont State Bank at Burlington, of ten or twelve hundred dollars.— The orators contended that all four of said notes were assigned to them as general security for their disbursements and indebtedness in said concern, which had wholly become the interest of Bostwick, and their said claims exceeded the amount of these fout-notes. That they, in fact, paid for nearly all of the goods sold by Bostwick to Burton, for which said four notes, and some others, were given by Burton to Bostwick. The said Burton also contended, that he and Bostwick paid the whole of said note due to said Bank. The orators contended that they paid one half of the same. Burton, also contended that the orators and Bostwick were in fact partners during the time that his said demands against Bostwick accrued. This was denied by the orators in their answers to the cross-bill. They insisted that all their connection with Bostwick was dissolved in September, 1809 ; and so Bost-wick testified. Burton also claimed large sums as due to him,and not included in said two judgments he recovered of said Jonathan, due at least from Bostwick ; and due from him and the orators, if he succeeded in establishing their partnership, at and after January 30,-1810, when said claims accrued. The nature of these claims, and the testimony about the same, are sufficiently noticed ^ in the report of the arguments of counsel, and the opinion of the 'court. "
    
      
      Arguments in behalf of the Orators.— I, The first question arising in this cause, is the validity of the demurrer. The first cause especially assigned is, that Bostwick is not a party to the bill. This is not necessary. This question is to be decided on the bill a lone, and without reference to the answer, crossbill, and proofs. On the face of the bill, Bostwick has no interest in the result: the ■ application is simply to set off the judgment and notes in favor of the plaintiff against Burton to the judgments in favor of Burton a-, gainst J. Ferris. No possible right of his, to be discovered on the face of the bill, can be impugned by the decree. 1 At the same time perfect and effectual relief may be afforded without a-. ny decree to operate upon him. It is true that he .may still be responsible to the defendant for the claims on which the judgments against J. Ferris are founded. But he is now only collat- • erally liable, and the mere fact that this liability may be extinguished by granting the prayer of the bill, does not render it necessary that he should be joined. He stands, in this respect, like any person, secondarily or collaterally liable; and the mere fact that this liability may be extinguished by granting the prayer of the bill, does not render it necessary that he should be joined. - He stands in this respect, like any person, secondarily or collaterally liable, and it can no more be necessary to join him, than it would be to join bail to the sheriff, or bail in court, in an application for an injunction, or to satisfy a judgment by set-off. The general rule as to parties is, that no person need be joined whose interest is not necessarily involved in the issue, and must necessarily be involved in the decree. — 1 Johns. Ch. 349, Wendell vs. Fan Rensellaer.
    
    2. The second cause of demurrer is also insufficient. Supposing the plaintiffs to have an adequate remedy at law, it does not follow of course that they have none in chancery. The powers of the two courts are in many instances concurrent, and the party often has his election where to seek his remedy. Such indeed, is the case with the very power in question. Our courts have never exercised the power of setting offjudgments in a sum-, mary way, except under our statute; and this case (the judgments not being technically mutual,) is obviously not within it. Besides, two of the notes not being in judgment could not be set off, even if the judgments are within the statute. Burton suffered judgment, was committed, and escaped, long before [prosecuting his claim against the plaintiffs: thus evading an offset in the usual mode of pleading it* and interposing technical difficulties in the way of an Off-set of the judgments. Besides, the parties maybe relieved, although they might have pleaded the set-off at law, and omitted it. — 2 Bl. R. 369, Barker vs. Braham.
    3. The third cause of demurrer is, this court cannot grant the relief prayed for. On this point we cite Simpson vs. Ward, 14 Johns. 63, and authorities there cited. — Mont, on Set-Off,p* 2-5. — 5 Vessy, 108. — 12 do. 848. — 13 do. 183.
    II. If the court have the general power,the question then is, cars they make the set-off in this case if they deem it equitable? It may be objected that the debts are not mutual. But the setjoff in this case is sought, not under the statute, but from the common law power of the court. Under the statute the debts must be technically mutual. But in the exercise of the common-law power, such mutuality only is required, as renders the set-off equitable and proper. The debts in this case are sufficiently mutual. Equity will look rather to the origin and nature of these claims than to the particular form which they may have accidentally assumed. The two judgments against J. Ferris were recovered against him as partner with E. Ferris and A. Bostwick> If the parties are to be regarded as partners (and so far as the validity of the judgments is concerned, it is not now to be questioned,) their tights and liabilities are mutual. If partners at all, they 'were such when the goods were sold to Burton, and were equally interested in the price of them. Can they not therefore set-off this price against the charges for goods and advances to them afterwards ? Further, Elijah Ferris is equally interested in the judgments against J-. Ferris. He may be forced to contribute, if the judgment's are paid, and Bostwick being insolvent. J. and E. Ferris may be regarded as virtually the debtors. As to the counter demands, they are not only realty, but nominally, the debtors. But if we regard the form in which the debts are now presented, there is no difficulty in making the set-off. J. and E. Ferris, are jóint creditors of the defendant. He is the creditor of J. Ferris. E. Ferris is the only person obviously-, who can object to the set-off. But he is the applicant, and Burton cannot abject. If the case were reversed, and Burton the applicant, the case might be diflerent. But even in such case, the set-oil has often been decreed. — 14 Johns. 63, Simpson vs. Hart. — 2II. Bl. 587, Hennie vs. Elliot. — 4 T. R. 3 23. — Mont, on Set- Off, 7, note.- — But further, Burt on states in his answer, that at the time of giving the notes, it was agreed that his advances which he might make to Bostwick should be applied to the notes; and he admits that his advances were the foundation of the judgments against J. Ferris. Upon the ground, therefore, of the original agreement a set-off may be made.
    The plea of the statute of limitations is no bar to the set-off, for, as to the notes, they are dated January 30th, 1810 : the bill was filed in 1819. As to the judgment against Burton, the statute does not run while the claim is pursued through the process of commitment, escape, &c. At all events, the gaol bond is within no statute of limitations, and the plaintiffs being equitably the owners of the bond, and entitled to the benefit of it, may set it off. ' — 1 H. Bl. Rep. 659, O’ Conner vs. Murphy.
    
    Is it equitable that the set off should be made ? On this point-a stronger case can hardly be imagined. It appears by the answer to the cross bill, and the proofs, that the plaintiffs originally paid for the goods for which the notes were given to a very large amount-that the notes have never been paid- — that they were sued by Burton for a part of the same goods which he delivered to Bostwick, and judgments obtained to a large amount, and that Bostwick and Burton are both insolvent. Independently of the injustice of suffering Burton to collect his judgments against J. .Ferns,while he is indebted to the plaintiffs in a larger amount for which they have no effectual remedy, the strange result will be produced, that the plaintiffs, after paying twice for the goods, will lose them entirely, and this after paying Burton for the very goods for which they hold his notes unpaid.
    If the offset is made, how far shall it be made, and what claims •must be taken into the account ? Answer, the notes not in judg-toent which are ^admitted to be due, and the judgments .against Bur toil founded on the two notes first due. As to the latter, an attempt 'is made to set up a supposed receipt executed by the plaintiffs to Burton ; but this is no defence to the set off; for the receipt is not proved. It is to be sure sworn to by the defendant. But the existence of it is denied by both the- plaintiffs, in their answer to the cross bill, and is disproved by Bostwick. The receipt,, if to be considered as proved, furnishes no defence. It is evidence of a mere agreement with Bostwick, with which the defendant has no concern.
    The great difficult}'' with this subject is, that Bostwick did not pay the bank debt and redeem the pledge. The defendant has failed to establish this fact. The defendant’s two judgments against J. Ferris are proper to be set off But no other claims of his are. His private claims against Bostwick are not proper to be Setoff. — 8 T. R. 69, Glaister vs. Hewer. To set off these would be in direct violation of Burton's agreement with the plaintiffs. He not only trusted Bostwick upon his private responsibility, but gave the plaintiffs distinctly to understand that he did so. As to charging the plaintiffs as dormant partners with Bostwick, the attempt fails. The fact of partnership is denied by the answer to the cross bill, and disproved by Bostwick in his ansvier. No evidence is offered to prove a partnership in fact after the 30th January, 1810 ? nor that the defendants had dealings with the partnership whilst it existed; In his after deal he relied on the sole responsibility of Bostwick. The fact of their having been partners will not avail, fora dormant partner is notliable after a’dissolution, even without' notice to such as had no previous dealings with the firm. Nor is publication in the Gazette necessary to protect such dormant partner. — 2 Camp; 617, JYewsome vs. Coles — Esp. JY. P. C. 371, Godfrey "vs. Turnbull. — Peake’s Cases, 42, 154. — fiBrod.&f Bing. 72, Brooke vs. Enderby. — 4Espi R. 59, Evans vs. Drum-mond. But supposing the plaintiffs liable as partners, there is nothing set forth in the bill which will serve as the subject of a set-off' With the exception of the claim formerly adjudicated upon, nothing appears in any tangible shape — nothing which the court can act upon. There is a general indefinite charge that the plaintiffs are indebted. Claims thus presented, having laid dormant for many years — so long, indeed, as to be barred by the statute of limitations, between a creditor confessedly poor, and debtors who were amply responsible, ought not to be favoured. They should be presented in such a shape, at least, as that this co.urt can determine their validity. But with respect to such as are specified, they are barred by the judgments set forth in the bill. The judgment on book concludes the defendant as to all articles charged or chargable on book. And the judgment in assumpsit, as to every thing adjudicated upon, of which the specification is evidence The defendant has not set forth in any part of his proceedings,any specific claim or debt due him, which does not also appear to have been submitted in the trials at law.
    
      Argument in behalf of Burton. Firstly. On the part of Burton it is contended that the offset claimed by the orators in this .case cannot be decreed upon any princples established in this court. Here are neither mutual debts nor mutual credits, and without a mutual demand, or a mutual credit, the Court of Chancery will not interfere. A joint debt, and- a seperate debt, cannot be set off against each other at law. — Mont. Set. 25. — 2 Mad. Ch. 513-4. — 8 Com. Big. 928-9. Nor in equity,unless a clear mutual credit has been given. — 2 Sw. Big. 149,
    
      Secondly. It is further contended that if this offset can be allowed, there is an adequate remedy at law. The power to make offsets rests either on the statute of offsets, or upon the jurisdiction of courts over their suitors. — 4 ’ T. R. 123, Mitchell vs. Oldfield. — 2 H. Bl. Bennie vs. Elliot. But courts of law exercise the power of setting off judgments upon the latter principle as extensively as courts of equity, and under the statute, it is said that “courts of equity have not gone farther than courts of law in cases of set off.” — 2 Aik. 235. — Mont. Set. 57, 69.
    
      Thirdly. If, however, the offset is allowable, we contend that, upon the bills, answers and proofs, Burton is entitled to bring in his other claims, not included in his two judgments. 1. The sum of four hundred and ninety six dollars, being the amount of goods delivered by Guilin and Jasper to Bostivick immediately previous ■to the sale of the store of goods by Bostwick to Burton. The facts in relation to this appear from the testimony of J. H. Bur
      
      ton and. Seth Wetmore. — Peak Ar. P. 197, Puller et al. vs. Roe et al. As to the other demands which Burton claims to have set off' if any set off is ordered — we contend that the recovery by Burton in his two actions wherein he expressly charged the partnership of Bostwick,and Jonathan and Elijah Ferris, during the period in which these claims originated, and in the business to which they related, has, as against Jonathan Ferris, at least, conclusive^ ly established the fact of such partnership, during that period, and in that business carried on ostensibly by Bostwick alone, and under the name and style of Jlndrew Bostwick. This being the case' it is competent for any person dealing with Bostwick in that business to set off any .debts of Bostioick against the partners. — 7 T. R. 361} . notes, Strong et al. vs. Davy. — Mont. Set. 29. We also contend that all these claims, (except the items in Burton’s account disallowed by the auditor, as being for the separate and private use of Bostwick) were equally partnership debts as those for which Burton recovered: they are clearly blended in the general account, and dealings of the parties, and cannot be severed without m anifest inj ustice.We furtherjcontend that Burton’s notes, tho’ made payable to Andrew Bostwick, might have been prosecuted in the names of all the parties, alledging that they were taken in the name and style of their firm; and that J. & E. Ferris, as indorsees, might have declared upon the endorsement of all the parties in the same way. Now it .shall not be permitted to these persons by electing to call the notes the private property of Bostwick, or by any other arrangement among themselves, to vary the legal effect of the transactions to the injury of Burton. Considering, therefore, that the partners were in reality both payees and indorsees of the four notes, and that the indorsors and indorsees are in fact the same persons, it follows that all these partnership debts are prop-, er subjects of offset against the notes. — 5 Ves.jr. 108, James vs. Kynnien. — Mont. Set. 3. — Do. 69 Jlpp. 5.
    The other claims, amounting to $1677, we consider to he proved by the testimony adduced by Burton, and • ought to be set-off, against the orators’ claims, if any offset be allowed. There is no evidence that these claims have been adjudicated in the action of ssssümpsit Burton vs. Bostwick, and Jon•athan and Elijah Ferris. The answer '■of Bostwick on this point is not evidence, and the deposition of Win. Br'ayto'n Only shows bis belief that most of them were contained in the specification filed in that cause. He does not say that any evidence was offered to support them», or even that the •specification first filed was not altered or withdrawn before trial. •Being counsel in that cause, he could certainly have told if these demands were really tried and adjudicated*
    
      Fourthly. We contend that there is no equity in tbis'case to induce -foecourtto allow the offsetelaimed by the orators beyond the amount 'of two of the four notes, unless Burton is allowed, at the same time,to bring into the account all his d emands for which he has not recovered judgment 5 because, upon the evidence it is doubtful whether the orators -did in fact purchase more than two of the aiotes. W e contend that two notes were pledged merely -as an indemnity against a certain bank note, and that Bostwick paid the principal part of that note. And because, if the court should grant the offset claimed by the orators, and not allow Burton to bring in his other demands, he must lose as much in those demands as the orators can possibly lose by failing to get an 'offset of snore than two of the notes* It is not, therefore a case for equity to interfere, and the rule of kw should be suffered to prevail.
   HutchiNsoN,

Chancellor, after -stating the case, announced the opinion of the co'urt. Itis objected that the Orators can have no decree by reason of tbe deficiency of their hill; Andrew Bostwick, not being -made a party defendant. We discover no necessity or use in making him 'such party. The orators complain of nothing which would entitle them to a decree against him, if he were defendant. Bostwick, can exercise no control over the demands on either 'side. He, being not served with process in Burton’s suits at law, and, consequently not being a debtor in said judgments, need not join to help the -orators get rid of those judgments in the particular way they choose to pursue. If Burton Were sure he could establish the partnership between the orators and Bosiwickiwhich he has set up in his cross bill, he might want to bring in Bostwick with the Orators as defendants to that bill, for" foe purpose of a decree that would cover all his claims font stand against Bostivick, and attach those claims to the others now litigated. But the defendant has not seen fit to pursue his motion to have Bostwick notified and made a defendant to his cross bill: and he has no right to complain .that the orators have not joined him in theirs.. . If Bostwick had a joint interest with the orators in the notes they pray to have offset, there would be some ground for the objection. But, it appears by the bill of complaint, and, indeed, by the testimony in the case, that he has no interest whatever in those notes. The orators, as assignees of Bostwick, have kept them till they have made them their own : and they, standing as joint endorsees of Bostwick, jointly retain the whole interest. If they hold the joint legal interest, they as fully, from the facts now before the court, hold the equitable interest,, as well with regard to Bostwick, as to Burton. Again, it is urged that, if the orators have any remedy at all, they have ample remedy at law. If this be so, it is not by virtue of our statute, authorizing an offset of judgments. A part of the orators’ demands are not judgments. The judgments, also, must be before the same court, to come within the statute. If, by the remedy at law, is intended an application to the discretionary power of the courts of law to compel offsets, where equity requires it, the remedy is inadequate for the same reason ; the demands are not all rendered incontestibly certain by judgments. Courts at law must act upon the rights of parties, first, by pursuing the ways the law directs to decide what those rights are ; then,give proper effect to the rights thus ascertained. Let the claim of the orators be presented to a court of law, and the defendant would have a right to plead non assumpsit to these notes, and have a jury trial: and while this should progress, might press the collection of his judgments and wholly evade the offset. The discretionary power of this court, as a court of law, to compel offsets on motion, only reaches the demands that have passed into judgments; which is not the case before us, but in part.— See 2, Aik. 11. 221, Connable vs. Bucklin. — It is further urged that this court, as a Court of Chancery, have not power to compel this set offset. The objections, taken together, seem to imply that we have greater power as a court of law than as a court of chancery. We might truly, meet the same embarrassments, at the threshold, in each capacity; but, sitting as a court of chancery, we can so control them as to prevent injustice. We can lay an injunction upon the judgments of the defendants, while the s.uit is pending, as was done in this case. If the defendant, in his answer, had denied giving the notes of the orators, we might have directed an issue to the jury, who would settle that question. But the answer of Burton, acknowledging the giving of the notes, has removed that difficulty, and placed the cause on the same ground as if judgment were rendered for the amount. It is unnecessary, perhaps, to observe, that chancery power was necessary to compel this answer, which thus removes the objection to our exercising the consummating power óf this court, should equity require it. Again, the statute of limitations, both pleaded and insisted upon in the answer, is urged in bar of the orators’ claim of offset. We may dispose of this by simply observing, that the answer expressly admits that these notes .were given, and have never been paid •' But, further, the notes were witnessed, and would run fourteen years, which term had not elapsed when this suit was brought. The statute would run against the judgment upon the two first notes in eight years; but the same was merged in the bond for the liberties of the prison, which comes not within the statute. But the answer admits that all remains unpaid, which sweeps away this ground of defence. Indeed, it seems not to have been much relied upon by the counsel.

The defendant charges, in his crossbill, that the orators and Bostwids were partners in the lumbering concern, and as such,* holden to him for all his claims against Bostwids, that grew out o that concern. This is absolutely denied by both the orators in their answers ; and there is no testimony tending to prove it, as relates to the demands not included in the judgments already recovered. It is urged, however, that the decision in these actions, that the partnership existed, is proof between these parties, during that period, in relation to other demands. This position cannot well be maintained. They might be partners with regard to some transactions,and not so with regard to others. Whether that decision was right or not, it binds all-parties with regard to the matters therein adjudicated; but it goes no further. It does not bind this court against doing what equity requires-in relation ta other' matters, not then under consideration/ In seems probable that those decisions are a hard" ship upon the orators. They, in- denying the direct charge of, partnership, admit that they were partners off Bostwick in his mercantile concerns about two years,- ending in Sept. 1309 ; but answer that the connexion was then wholly dissolved.- And they positively deny any connexion with him in the lumber concern.— Bostwick, who stands an indifferent witness in this controversy,entirely supports the answers of the orators upon these points: and there is no testimony tending to contradict those answers. There may have been testimony on those trials, showing a partnership-prior to Sept. 1809, and the said Jonathan might have been unable to prove the dissolution, or to prove it sufficiently published in the view of the court and jury $ bntthe testimony now before us dan leave do doubt of the dissolution prior to the lumber concern.

The orators now claim that their notes,and demand due on the jail-bond, shall offset against the two judgments the defendant holds against Jonathan Ferris, on the ground of a mutuality of interest, and the probable loss of their said debts without such offset, by reason of the poverty of the defendant. This mutuality results from the partnership of the orators, of which we entertain no doubt. They being joint partners in all their- advances to Bost* wick,'and in all their liabilities as his partners, while they continued so; also as his sureties, and in all the payments they made in consequence of such liabilities; and the four notes being assigned to them jointly by Bostwick,- they are jointly entitled, both in law and equity, to receive the pay on these demands, so far as either has any interest in them. Their interest in two notes is undisputed. With regard to the other two, it is disputed.

The defendant insists, in his answer, and in his cross bill, that two of these notes were only delivered to the orators as security for signing the bank note ; and he further insists, that the bank note was wholly paid by BostwicJc, except forty dollars paid by the defendant himself. And he attaches to his answer what he ' says he verily believes to be a copy of a writing to that effect, given back by the orators, when they received said notes. He ' also urges the after concessions of the orators to him that the facts were so. This writing, if there was such a one, is not produced in evidence, and the orators in their answer to the cross bill, deny its ever existing : jand deny that two of said notes were delivered merely as security for their signing the bank note$ but allege, that all four of said notes were delivered for them to receive the pay, and apply the same in satisfaction of their general expenditures in behalf of Bostwick. They further answer, that they paid towards said bank note, or rather on the execution for the same debt, four hundred dollars at one time, and three hundred at another time, and the officer’s fees, amounting to eleven dollars and seventy five cents, which said sums have never been paid them,as they fully believe. On the part of the defendant, Esq. Wetmore testifies, that he was sheriff,and had the execution to collect, and that Burton paid him forty dollars, and Bostwick paid the remainder. On the part of the plaintiffs, Bostwick testifies explicitly that he did not pay the whole, but that the orators paid half, of said execution.

That the orators received two of those notes as security for signing the bank note, merely, and that the bank note] was paid by Bostwick without charge to the orators, form a substantial charge in the cross bill. This makes the orators witnesses for the defendant on that point. And, as they in their answers deny this,as before mentioned, and as Bosiwick’s testimony fully sup» ports these answers, we must take the fact to be so, notwithstanding the positive testimony of Esq. Wetmore. Not that we doubt at all the integrity and recollection of Esq. Wetmore. The money actually paid by the orators,might have been delivered hyBostwick, and he might have felt no interest to inform Esq. Wetmore from whom the money came. What is still more probable, the money paid by the orators might have been endorsed, and the officer’s fees paid, as related in the answers of the orators, and a delay agreed upon : and, afterwards, an alias or pluries execution taken out for the remainder, and the whole paid to Esq. Wetmore, as he now relates. 'As we find this fact to be,if the lien of the orators upon the two notes,'-first payable, were as charged by the defendant in his cross bill, still, that lien .was not destroyed by the redemption of .the pledge, as contended by the defendant. The pledge continues, unless we believe tilt? charge of the defendant in bis cross bill, that the orators, in the fall of 1810, acknowledged the hank note paid without charge to them, and their lien upon the two* notes destroyed. We are not at liberty to treat this as true j for it is denied by the answers, and there no testimony tending to prove it.

This result fenders unimportant the controversy about the receipt, or the terms of it; the receipt, set up by the defendant in his answer to the orators’ bill, and in his crossbill. This the defendant attempts to support by the testimony of John H. Burton* His testimony, upon this point,is far from being positive. He has •no transcript of the writing, andhis recollection is so imperfect that he cautiously inserts at every sentence, “ if he recollects right,” &c. Besides, his testimony leaves the receipt in the hands of Bostwich, to whom it belonged, and he, instead of showing it lost, so it cannot now be produced in court, swears that he believes no such writing ever existed. We should require but little testimony to convice us that Bostwich took a writing of some kind, from the orators, when he assigned to them notes to the'amount of four thousand dollars : especially if, as the orators affirm, the . application of the avails, or amount,was to be the subject of a future settlement. But, when we are called upon to decide upon the ■ exact terms of that writing, without having it, or any sworn transcript, before us, we should act upon something more definite and positive, than the testimony of J. H. Burton: and this, more especially, as all. the facts, before us, shew a state of things, in which it would seem probable that the orators would be apt to require, and Bostwich willing to give, security for any monies they might' be liable to pay, by reason of their previous connexion with him, or their having become security inhis behalf. We, therefore,decide that the orators have a joint interest in the four notes assigned them by Bostwich, in whatever shape they may now be, whether, in notes, or judgments, or prison bonds : and that'the whole amount is comprised in that joint interest.

The two judgments in favor of Burton, the defendant, are against Jonathan Ferris, only.' Yet the same partnership of the •orators renders these, in equity, the joint debts of the orators. If Jonathan should pay them, he could Compel Elijah to contribute bis share. The remedy upon Elijah is more circuitous than that upon Jonathan. But they are jointly liable to pay, or contribute towards paying, these judgments. They have an absolute, a joint, and an equal interest in paying the same, or procurring their discharge. There is, therefore, in equity, a complete mu-/ tuality in the demands, which the orators pray to have set off against each other.

The next question presented is, do the circumstances- proved, show this offset equitable ? It is always equitable, that mutual debts, due in money, should be discharged by an offset rather than that each should collect of the other, unless this equity is destroyed by some extraneous circumstances shown on the hearing. Hence the provisions of our statute for direct offsets, where the demands are, in form, as well as substance, mutual. Hence also, the Chancery law to compel offsets, when injustice would be the result of refusal. In searching for the equity in the present ease, we find that no sort of partnership existed between the orators and Bostivick, during any part of the period, in which the defendant’s debts accrued. Further, that Burton gave credit to Bostwick alone, and had no suspicion that Bostwick, when he delivered him goods,and paid monies for him, was binding or could bind the orators. There is no ground to suspect,that the orators, at any time, drew from Bostwick the funds which gave him credit, as -charged in the defendant’s cross bill. It appears probable, from the testimony of Bostwick, that all the goods he sold to Burton were, in fact, paid for by the orators, except about $500 worth purchased in Montreal. It is a fact not contested, that Burton is so depressed with poverty, that, should the orators pay him the amount of his two judgments, the only prospect the orators would have, of collecting the amount of said notes, would be the recovering back the same money so paid upon said judgments. But a ■circumstance, that, more than any other, seals the equity of this .offset is, that Burton has disclosed in his answer, that it was expressly agreed between him and said Bostwick, that, whatever he should pay for said Bostwick, and the amount of the goods he should deliver him in said lumbering business, should be set off against said notes. The orators pray that this 'very offset should be made, so far as Burton has established the amount of his claims, by recovering judgment for the same. This the defendant now resists : but the equity is too apparent to be rejected by the court. The defendant however, insists, that, if any offset is made, he is entitled to an allowance of various other claims, besides the two judgments, for goods delivered to, and payments made for, said Bostwick. Of these he has furnished a schedule in his answer and crossbill. These have never been established as claims, even against Bostwick, by any recovery; on the contrary, it appears by the defendant’s own showing, that these were all under consideration on the trials in the suits in which said judgments were rendered, and were rejected and disallowed. Were it not so, they could not be supported in law or equity, as claims against the ora-t ors, by any testimony now before the court. All but one or two Jtems accrued as claims against Bostwick, after the assignment of the notes to the orators, and notice back to Burton, and his promise to pay to the plaintiffs. He had given a note to Bostwick of three thousand dollars or more, besides the four notes thus assigned to the orators. He had no right, after such notice,and his promise to pay to the orators, to continue paying to Bostivick, or suffer Bostwick to become his debtor, so as to create a claim to go against these notes thus assigned. But it is said these notes were given too large by $4 96, that amount of goods having been sold after the bills were made out, and before the notes were given 5 also that the payment to Samuel Burton, of seven or eight hundred dollars, was prior to the giving of said notes. These rest on similar principles with the others. There is no pretence that the orators knew this, or had reason to suspect it, or inquired after it. The defendant knew it, or might have known it: and was bound to know it before he promised the plaintiffs, or be silent about it afterwards. It appears from the testimony, that the whole amount of all the notes was too large by $496; but it does not appear that either of these four thus assigned, was larger than was intended. The defendant held another note of three thousand dollars, or more,which might be the one that was too large. He may so treat it, and settle with Bostwick accordingly. He must so treat it, ratber tharfim'álce an inroad Upon the amount he had promised to pay to the orators, by facts of which they knew nothing, till it was too late to seek their remedy upon the endorser.

Mien and Phelps, for the orators.

Moyce, for the respondent.

These claims being removed out of the way, the decree of the 'court is, that the offset be made according to the prayer of the amended bill, but without cost to either party, interest must be cast on the demands, and the balance ascertained. If there proves to be a balance in favor of the orators, that will be decreed them, and they may have execution for such balance: and the judgments be entered in the suits at law as of 1821 ,and satisfied by the offse ts, [in whole or in part, as the balance of the offsets shall render proper.  