Heckenkemper v. Dingwehrs

• Citation: 1863 WL 3217,32 Ill. 538
• Parties: HERMAN HECKENKEMPER et al.v.JOHN E. DINGWEHRS.
• Decision Date: 30 November 1863
• Court: Supreme Court of Illinois

32 Ill. 538

1863 WL 3217 (Ill.)

HERMAN HECKENKEMPER et al.

v.JOHN E. DINGWEHRS.

Supreme Court of Illinois.

November Term, 1863.

ERROR to Circuit Court of Clinton County.

The pleadings in question are fully stated by the court.

Buxton & White, for plaintiffs in error.

Sparks & O'Melveney, for defendant in error.

BREESE, J.

This was an action of debt brought on a sealed note, executed by three persons to the defendant in error, dated April 29, 1861, and payable twelve months after date. To the action the defendants pleaded the general issue, and a special plea, setting forth, in substance, that on the 15th of May, 1861, the defendant in error agreed with Heckenkemper, one of the makers, that if he, Heckenkemper, would establish in the Clinton county court, a certain account which he claimed to have against the heirs of John Nordhouse, deceased, as their former guardian, and that the county court would allow the same to the defendant in error, then that defendant in error would give Heckenkemper credit on the note sued on for the amount so established and allowed, and then avers that Heckenkemper did, at the August term, 1861, of the county court, establish the account to the amount of three hundred and thirty-five dollars, and that the county court did, at the same time, allow the same to the defendant in error, he then being the guardian of the heirs of Nordhouse, which sum, so established and allowed, the defendants asked to be set off and allowed as a credit on the note, as by the agreement of the parties.

A demurrer was sustained to this plea, and on trial of the issue, by the court, on the first plea, a verdict and judgment was entered for the plaintiff, for the full amount of the note and interest. The only error assigned is in sustaining the demurrer to the special plea.

It is insisted by the defendant in error, that the plea was bad, because it sought to set off an individual demand of one defendant against a joint claim, in a joint action against him and others.

Under the English statute of setoff, demands to be set off must be mutual and due in the same right, but where there is an express agreement to that effect, one defendant in a suit against him and others jointly, may set off his individual claim. 1 Ch. Pl., 571. Our statute is more comprehensive than the English statute, embracing claims and demands of any description as subjects of setoff; at the same time this court has held that an individual demand cannot be set off against a joint demand in a joint action.

We...