
    William M. Rankin vs. Alexander Butler.
    where exceptions are taken to the exclusion of evidence to prove a set-off, the bill of exceptions must set out the items of the set-off filed with the plea, otherwise this court will not notice the objection.
    The words “ set-off withdrawn,” in a record, refer not- to a plea of set-off, but to the account of set-off, filed with the plea.
    In error from the circuit court of Marion county.
    The defendant in error sued the plaintiff in error, and one Joseph M. Ford, in an action of assumpsit, upon a joint note. The process was not served on Ford, and the suit was dismissed as to him; the .portions of the record, therefore, that refer to him, are not noticed.
    The defendant, Rankin, plead non assumpsit and payment. The plea of payment recites in the conclusion, “ and for set-off against the plaintiff’s demand, the said defendant herewith files his annexed account against plaintiff. Wherefore, &c.” No account however, of the items or amount of set-off, appeared in the record. Issue was joined on both pleas.
    The record then contains this statement, “ October term, 1840. Plea of general issue; set-off withdrawn ; and now at this day, to wit, it being the 12th day of October, 1840, came the parties by their attorneys, and a jury, &c.” who found a verdict for the plaintiff.
    On the trial of the case, the defendant offered to prove, by Liberty Warren, a witness on his behalf, the account of offsets alleged to be filed with the plea of payment, which the court refused to permit, and the defendant excepted. The bill of exceptions refers to the “ account of offsets filed with the plea of payment,” but does not set it out, nor does it appear anywhere of record.
    The action of the court below in rejecting this testimony, is now assigned for error.
    
      
      Robert Hughes, for plaintiff in error.
    The only question for the consideration of this court is, did the court err in rejecting testimony offered to prove the set-off? we, for the plaintiff, admit, that the set-off must be between the same parties, and in the same right, and will not refer to authorities to prove what we admit, instead of what we assert as law. But we contend that Ford never was a party to this suit. The plaintiff below sought to make him a party, but did not do so. He abandoned pursuit against him, as he did pursue him by alias pluries, &c. &c.
    Then 1. Defendant in error was sole plaintiff below, and the plaintiff in error, sole defendant, so that the matter in set-off, was, and is between the same parties.
    2. The matter in set-off is in the same right, as the plaintiff could only recover in the action against Rankin, and Rankin alone, and not against Ford and Rankin, (who were not partners, but merely joint contractors,) so that between defendant in error, and plaintiff in error, the matter of demand and of set-off, was at the time of the pleas filed and trial in one and the same individual right. Rankin is the sole defendant, (even if he was not originally, but it is contended that he has always been sole defendant, as process was never served on Ford,) and a defendant may avail himself of a set-off. See Revised Code, page 118, sec. 61.
    
      John D. Freeman, for defendant in error.
    The statute of 1822, H. & H. p. 590, sec. 7, provides, that “ in every action, in which a defendant shall desire to prove any payment of set-off, he shall file with his plea an account, stating distinctly the nature of such payment of set-off, and the several items thereof; and in failure to do so, he shall not be entitled to prove before the jury such payment of set-off, unless the same be so plainly and particularly described in the plea, as to give the plaintiff notice of the character thereof.”
    In this case, the plea does not describe the nature of the set-off, nor does it give the plaintiff any notice of its character. It refers to an account filed, but the record shows no account.
    
      The statute of 1837, entitled, “ an act to amend the laws respecting suits, to be brought' against indorsers of promissory-notes,” provides, that-" the court shall receive the plea of non-assumpsit, and no other, as a defence to the merits, in all suits brought in pursuance of this act; and all matters of defence may be given in evidence, under .the said plea.” This action is not brought in pursuance of this act. There are no indorsers on the note sued on. Besides, this latter act does not repeal the statute of 1822, before quoted; it does not do away the necessity of filing an account of the items of payment, or set-off, relied on by the defendant. In this case, the defendant withdrew his set-off, and had no right to. give evidence of a set-off ■for this reason.
   Mr. Justice ThacheR

delivered the opinion of the court.

This case comes up, by a writ of error, to the circuit court of Marion county.

The action was assumpsit. The single question which seems to require our consideration, is, whether the court below erred, in excluding testimony offered to prove a set-off to plaintiff’s account. The record shows, that the general issue of non-as-sumpsit, and a plea of payment, were originally plead to the action! There is, subsequently, an entry in these words : “ Plea of general issue,; set-off withdrawn.” The bill of exceptions does not set forth the account filed with the plea of payment, by which this court can judge of the impropriety of the exclusion of the evidence. If such an account existed, it should have been particularly described in the bill of exceptions, so as to have enabled this court to judge of its validity, under the statute. PI. & H:590, s. 7. It does not appear in its place as an appendage to the plea of payment, and, had it been there, the words set-off withdrawn,” could only refer to the fact of the withdrawal of an account, filed with the plea of payment. Under the state of pleadings, as manifested by the record, we cannot see any error in the judgment of the court below.

Judgment affirmed.  