Weaver v. Rogers , 44 N.H. 112 ( 1860 )

Bartlett, J.

Unless the defendants could have maintained an action at law against the plaintiff's for the $125, it was not available by way of set-off. Barb. Set-off' 32 ; Varney v. Brewster, 14 N. H. 54. In such an action the two defendants must have joined to recover back the money; but as Rogers had by his own act precluded himself from any right of recovery, the joinder of Batch-elder could not enable the two to maintain an action at law for their joint benefit or for the benefit of Rogers. Such an action at law could not have been sustained in the name of the two for the benefit of Batehelder, because the partnership affairs being unadjusted, his interest in the fund was joint and contingent, and could not be ascertained until an adjustment, which could not be made in a suit at law. Fellows v. Wyman, 33 N. H. 358; Greeley v. Wyeth, 10 N. H. 15; Morrison v. Blodgett, 8 N. H. 250; Homer v. Wood, 11 Cush. 62; Jones v. Yates, 9 B. & C. 532; Story Part., sec. 238; Collyer Part., sec. 643; 2 Greenl. Ev., sec. 480. The effect of the principal cases cited by the defendants is so fully considered in the decisions to which we have referred, that we do not deem, it necessary to reexamine them. There must be

Judgment on the verdict.