BENNINGTON, 179; Stone v. Winslow, 7 do. 338; Thompson v. Colony, February,

1842. 6 do. 91; Perkins v. Rich, 12 do. 597.

Temple

v.

Bradley.

The jurisdiction of justices of the peace and county courts are not concurrent. The limits of both are exactly defined by statute; one begins where the other ends.

There can be no doubt that the county court would have had jurisdiction. Reed v. Talford, 10 Vt. R. 569.

Where there are mutual accounts between the parties, and notes are given up to apply on such accounts, or to balance credits, the whole can be settled in this form of action. Fasset v. Vincent, 8 Vt. R. 73. Barlow v. Butler, 1 do. 146. Harrington v. Hall, 2 do. 175.

Canfield, argued for defendant, and cited Catlin v. Aikin, 5 Vt. R. 177; Scott et al. v. Sampson, 9 Vt. R. 339. Perkins v. Rich, 12 Vt. R. 595.

The opinion of the court was delivered by

REDFIELD, J.-This is an action of book account, sued before a justice. Plaintiff's account is $62.00, and defendant's $103.00. The plaintiff appealed the case to the county court. He now moves for judgment on the report of the auditor, for the amount of his account excluding defendants. If this be the result of the statutes upon the subject, it is singular.

I. It is plain, I think, that on the trial before the justice, the defendant could not insist upon his account, except by way of defence, to show there was nothing due the plaintiff on the account. In current accounts between parties, it is only the balance which forms the debt. Hence it is not competent for either party to select a single item of the account, and sue upon it.

III. We think, then, the defendant could not, in the justice's court, have insisted upon judgment in his favor for the balance his due, because the account, if above $100, could not be brought in by way of offset, for the statute provides, that 'no demand shall be allowed in offset, in actions before a 'justice, unless the same would have been within the jurisdic'tion of a justice, if an action had been commenced there'on.' Hence, it is obvious that such an account could not be allowed in offset' in that court.

6

Temple

v.

Bradley.

III. But when the case comes into the county court, by BENNINGTON, February, appeal, the statute provides that the parties shall have the 1842. same right to plead in offset as if the action had been 'originally commenced in the county court.' And, although the defendant's account, in this action, is not strictly a plea in offset, it is very obvious that the sixth section was intended to admit all matters of offset, which were excluded by the fourteenth section. If that were not so, then, in an action on book, if the plaintiff's account was less than $100, and the defendant's exceeded that sum, as is contended in the present case, the plaintiff could recover his book account, and defendant could not set-off his, in either a justice court, or the county court. In the one, because it was matter of offset, and in the other, because it was not, which is absurd.'

IV. But we think this case is with the defendant on the merits, even on the ground of the plaintiff's argument. The defendant's account is made to exceed $100, by charging a note paid and given up, and when there was no propriety in charging it. The defendant should have credited the plaintiff the balance only of the money received of Judson for this was all that had any connection with the account. So the plaintiff charged it originally. In this view the defendant's true claim did not exceed $100. We do not think the party is to be driven out of court on a question of jurisdiction, because he has not stated his account according to the facts, any more than if he had carried the cents to the column of dollars, or misstated the foot of the column of debt.

VOL. XIV. W. R. IV.

33

Judgment affirmed.

WINDHAM COUNTY.

FEBRUARY TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

JACOB COLLAMER,

ISAAC F. REDFIELD, Assistant Justices.

JOSEPH RICHMOND V. JAMES STANDCLIFT and JONATHAN

ALLEN.

Where two persons, one being principal and the other surety, executed a note for money borrowed, and the principal, without the knowledge of the surety, agreed to pay nine per cent. interest for the money, and afterwards made a payment of interest at that rate, and the sum paid was indorsed on the note, generally; it was held that the surety was not thereby discharged from his liability to pay the note.

ASSUMPSIT, on a promissory note, dated March 28, 1838, given by the defendants for $85.00, to the plaintiff, or order, payable on demand, with interest, for value received.

Plea, non assumpsit. Issue to the country.

On the trial in the county court, the testimony tended to prove that the note was signed by Standclift as principal, and by Allen as surety, and that the plaintiff had knowledge, at the time of the delivery of the note to him by Standclift, that Allen had so signed as surety. The defendants introduced testimony tending to prove that the note was given for money loaned by the plaintiff to Standclift, and that, at the time of loaning said money and receiving the note, there was an understanding and agreement with Standclift and the

WINDHAM. February, 1842.

v.

Standclift

et al.

plaintiff, without the knowledge of Allen, the surety, that Standclift should pay nine per cent. per annum interest on said loan; that afterwards, on the 28th day of March, 1839, Richmond in pursuance of said agreement and without Allen's knowledge, Standclift paid the interest at the rate of nine per cent., being seven dollars and sixty-five cents, which was indorsed on the note as a payment generally; that, soon after the date of the note, Allen moved to Pennsylvania and had resided there ever since, and that Standclift and the plaintiff had, during that time, resided,n ear each other, in the towns of Halifax and Guilford, in this county, and that Standclift failed and became insolvent a short time previous to the commencement of the present action.

The court instructed the jury that these facts could not operate to discharge Allen the surety.

The jury returned a verdict for the plaintiff, and the defendants excepted to the decision and charge of the county

court.

Wm. C. Bradley, for defendants.

As usury, in most states, avoids a note, it is not to be expected that we shall present an authority precisely in point; but the defence here rests on the authority of those analogous cases of which Pidcock et al. v. Bishop is the most prominent. 3 B. & C. 605, (20 E. C. L. R. 197.) There the principal agreed with the plaintiffs, who were partners, that if they would let him have certain iron, he would, besides paying therefor the value guarantied, pay one of the partners an additional sum per ton, towards an old debt he owed him, and this last arrangement was concealed from the surety. It was holden by the court that, as this part of the bargain had a tendency to lessen the funds with which the principal might be expected to make payment, and thereby increase the risk of the surety, he was entitled to be placed on an equal footing with the other party as to information, and, as his object must have been to render the principal a service, if there was anything in the whole contract which tended to lessen the benefit which he supposed himself to be rendering, he was entitled to know it, that it might be seen whether he would or not have declined to sign the contract, and that therefore the concealment was a fraud on the surety and

Richmond

บ.

Standclift et al.

WINDHAH, avoided the contract. See also, Jackson v. Duchaire, 3 February, 1842. T. R. 551. In Williams v. Rawlinson, 3 Bing. 71, (11 E. C. L. R. 36,) Ch. Justice Best fully recognized the authority of Pidcock v. Bishop, but the plaintiff failed in proof as to any concealment. In Stone v. Campbell, 5 Bing. N. C. 142, (35 E. C. L. R. 57,) an attempt was made to discriminate between a guaranty and a promissory note signed by a surety while still remaining inter partes, but the distinction was repudiated by the court, for, says Tindal, Ch. J., 'th e liability of the maker of the note and of the guarantor depends upon precisely the same event and the extent of the 'liability is the same on either instrument.' As to the amount, it is apprehended to be of no more consequence than that of time would be, in case the creditor had given further time of payment to the principal without the assent of the surety.

D. Kellogg and R. Tyler, for plaintiff.

I. The charge of the county court was right:

1. The defendants were both principals on the note, and neither can avail himself of the right of surety without expressly signing as such.

2. The promise to pay nine per cent. interest was without consideration and void and could injure no one.

3. If the addition of three per cent. had been put into a separate note, under seal, it could not have injured Allen. unless such note had been paid. And indeed if the two and a half dollars extra had been paid, it is difficult to see how it could affect Allen.

4. The defence rests wholly on the ground that Standclift encouraged the plaintiff that he would pay him the three per cent. extra, but never bound himself to do it, and never did. pay it.

The opinion of the court was delivered by

WILLIAMS, Ch. J.-The question in this case is, whether the facts, proved at the trial, constitute any defence against the note for either, or both of the defendants.

Conceding to the defendants the principles which regulate contracts between a creditor and the surety of his debtor, we think the decision of the county court was correct, and the facts proved did, in no way, operate to discharge the surety.