Dart v. Sherwood , 7 Wis. 523 ( 1859 )

By the Court,

Whiton C. J.

The judgment of the court below is correct and must be affirmed. The note declared upon is the joint and several note of the defendants; joint because it is signed by both ; and several, because each defendant promised severally. Story on Promissory Notes, S. 57; Hunt vs. Adams, 5 Mass. R., 358; Same vs. Same, 6 do., 519.

The objection taken to its introduction in evidence under the common counts has no existence in fact, because it was specially declared upon according to its legal effect.

We have no doubt that as to the payee of the note the defendants were both principals, though we do not see as' that question arises in the case.

The offer to prove the set-off was, under the circumstances of this case, properly rejected. The action was against two makers of a promissory note, and the defendant, John C. Sherwood, offered to prove a set-off consisting of moneys paid by him for the benefit of Dart. It is well settled that oné of several defendants cannot set-off a debt due him alone from the plaintiff against a joint debt Sub. 6, § 1, chap. 94 of R. S.; Warner vs. Backer, 3 Wend. R., 400; Wolfe vs. Washhurne, 6 Cowen R., 261; § 12, chap. 93 of R. S., we do not think has any application to this case.

The judgment of the circuit court must therefore be affirmed.