in order to make them jointly liable." But where it is provided that the person who furnishes the liquor which causes the intoxication "in whole or in part," habitual or otherwise, shall be liable, the damages cannot be apportioned; full recovery may be had against any one who contributed to the result complained of.2 Each partner is an agent of the firm of which he is a member for the purpose of carrying on its business in the way it is usually prosecuted; hence an ordinary partnership is liable for the results of the negligence of any one of its members in conducting its affairs in the usual way.' Such liability extends to the fraudulent or malicious conduct of one partner though the others had no knowledge of it, if the act was done for the benefit of the firm and was within the scope of the partnership. But it does not embrace acts done beyond such the former is liable for all damages, notwithstanding the other also contributed." The majority of the court came to the conclusion that vendors of intoxicating liquors who separately sell to a man, who, by thus imbibing, in a period of several years, becomes an habitual drunkard, are in law jointly and severally liable for that result; though they have no concert in the sense of communicating with each other on the subject; though they do not act together, that is, no two of them join in any one sale, and each may be unacquainted with the others, and perhaps may not even know that there are others; though the only circumstance that is supposed to join and unify them is that they are engaged in the same kind of business and each is doing such a business as has a tendency to make drunkards; and in a particular case they have thus made one. 86; Werner v. Edmiston, 24 Kan. 147; Rantz v. Barnes, 40 Ohio St. 43; Aldrich v. Parnell, 147 Mass. 409. This is the rule applied in Michigan, although the statute does not contain the words "in whole or in part." Steele v. Thompson, 42 Mich. 596. See Sutherland's Stat. Const., § 377. 3 Lindley's Part. (2d Am. ed.) *149; Linton v. Hurley, 14 Gray, 191; Buckie v. Cone, 25 Fla. 1; Mode v. Penland, 93 N. C. 292; Gerhardt v. Swaty, 57 Wis. 24; Robinson v. Goings, 63 Miss. 500; Wiley v. Stewart, 122 Ill. 545; Hall v. Younts, 87 N. C. 285; Hyrne v. Erwin, 23 S. C. 226; Stroher v. Elting, 97 N. Y. 102. 4 Lothrop v. Adams, 133 Mass. 471; Locke v. Stearns, 1 Met. 560; Gray v. Cropper, 1 Allen, 337; White v. Sawyer, 16 Gray, 586; Durant v. Rogers, 87 Ill. 508; Wolf v. Willis, 56 id. 360; Chester v. Dickerson, 54 N. Y. 1; Guillou v. Peterson, 89 Pa. St. 1 La France v. Krayer, 42 Iowa, 163; Robinson v. Goings, 63 Miss. 500. 143. 2 Neuerberg v. Gaulter, 4 Ill. App. 348; Bryant v. Tidgewill, 133 Mass. But see Gilbert v. Emmons, 42 Ill. 143; Grund v. Van Vleck, 69 id. 478; Rosenkrans v. Barker, 115 id. 331. scope,' unless they are authorized or adopted by the firm.2 A partnership is also responsible for the negligence of its servants subject to the same limitations.3 1 Gwynn v. Duffield, 66 Iowa, 708; Schwabacker v. Riddle, 84 Ill. 517. 2 Graham v. Meyer, 4 Blatch. 129; Heirn v. McCaughan, 32 Miss. 17; Taylor v. Jones, 42 N. H. 25; Ernst man v. Black, 14 Ill. Ap. 381; Wood- 151. Words as provocation for assault; agreements to fight. 152, 153. Provocation in libel and slander. 154. Mitigating circumstances in trespass and other actions. 155. Plaintiff's negligence. 156, 157. Measures of prevention; return of property; discharge of plaintiff's debt. 158. No mitigation when benefit not derived from defendant. 159. Fuller proof of the res gesta in trespass, negligence, etc. 160. Official neglect. 161. Modification of the old rule. 162. Plaintiff's consent. 163. Injuries to character and feelings. 164. Reduction of loss or benefit. 165, 166. Pleading in mitigation. 167. Payments. SECTION 4 RECOUPMENT AND COUNTER-CLAIM 168, 169. Definition and history of recoupment. 170, 171. Nature of defense. 172. Constituent features of recoupment. 173. Remedy by counter-claim. 174. Validity of claim essential to recoupment. 175, 176. Parties. § 177. Maturity of claim or demand. 178. Cross-claim must rest on contract or subject-matter of action. 179, 180. Recoupment for fraud, breach of warranty, negligence, etc. 181. What acts may be the basis of recoupment. 182. Cross-claims between landlord and tenant. 183. Cause of action, connection between and cross-claim. 184. Recoupment between vendor and purchaser. 185. Liquidated and unliquidated damages may be recouped. 186. Affirmative relief not obtainable. 187. Election of defendant to file cross-claim or sue upon his demand. 188. Burden of proof; measure of damages. . 189. A cross-claim used in defense cannot be sued upon. 190. Notice of cross-claim. SECTION 5. MARSHALING AND DISTRIBUTION. 191. Definition. 192. Sales of incumbered property in parcels to different purchasers. 193. Sale subject to incumbrance. 194. Effect of creditor releasing part. 195. Rights where one creditor may resort to two funds and another to only one. 196. Same where the funds belong to two debtors. 197. Principles on which priority determined. SECTION 6. SET-OFF OF JUDGMENTS. 198. Power to direct set-off inherent. 199. When it will or will not be granted. 200. Interest of the real parties considered. 201. Set-off not granted before judgment. 202. Assignee must make an absolute purchase. 203. Nature of action immaterial. 204. Liens of attorneys. SECTION 1. CIRCUITY OF ACTION. [220] § 143. Defense of. The defense of circuity of action is available where the parties stand in such legal relation to each other that if the plaintiff recovers against the defendant the latter thereupon and by reason thereof has a cause of action against the former for the very sum so recovered. The plaintiff's demand is then neutralized by his liability, consequent upon recovery, to pay back such sum; by a legal equation the plaintiff has no cause of action. This defense ac complishes the same result as would the circuity of action. Thus in an action against the surviving partner upon the promissory note of a partnership it was held that an indenture by which the plaintiff and others had covenanted to indemnify the defendant against all debts due from the partnership and against all actions brought against him by reason of such debts was a bar to the action. Under a statute which imposes a personal liability upon stockholders for the debts of a corporation a creditor who is himself a stockholder cannot maintain an action to enforce such liability against a costockholder. One who is a surety upon an official bond cannot recover from his fellow-sureties the full amount of damages he has sustained by its breach.3 § 144. Agreements not to sue. On this principle if a creditor makes a valid agreement never to sue his debtor upon a specified demand it operates to extinguish the debt like a release. But when the covenant is that a demand shall not be put in suit within a limited time a breach thereof cannot be pleaded in bar of that demand. The reason is that the [221] damages for the breach of the latter covenant being uncertain and not determinable by the amount of the demand, the principle of circuity of action is not applicable. § 145. Principle operates in favor of plaintiff. The same principle of avoiding circuity of action will sometimes operate 1 Whitaker v. Salisbury, 15 Pick. 534; Austin v. Cummings, 10 Vt. 26. 2 Gray v. Coffin, 9 Cush. 192, 206; Bailey v. Bancker, 3 Hill, 188. 3 Alderson v. Mendes, 16 Nev. 298. Plaintiff declared on a note made by C. and payable to plaintiff or his order, and afterwards indorsed by him to the defendant, who re-indorsed it to plaintiff. After verdict for the latter the judgment was arrested. Bishop v. Hayward, 4 T. R. 470. But if it appears that plaintiff's name was originally used for form only, and that it was understood by all the parties to the instrument that the note, though nominally made payable to the plaintiff, was substantially to be paid to the defend ant, and the declaration so alleges, the defense of circuity of action is not good. Ibid.; Wilders v. Stevens, 15 M. & W. 208. 4 Robinson v. Godfrey, 2 Mich. 408; Cuyler v. Cuyler, 2 Johns. 186; Rowley v. Stoddard, 7 id. 207, and note a; Phelps v. Johnson, 8 id. 54; Lane v. Owings, 3 Bibb, 247; Millett v. Hayford, 1 Wis. 401; Reed v. Shaw, 1 Blackf. 245; McNeal v. Blackburn, 7 Dana, 170; Jackson v. Stackhouse, 1 Cow. 122; Sewall v. Sparrow, 16 Mass. 24; Gibson v. Gibson, 15 id. 106; White v. Dingley, 4 id. 433; Whitaker v. Salisbury, 15 Pick. 534; Jones v. Quinnipiack Bank, 29 Conn. 25; Clark v. Bush, 3 Cow. 151; Dearborn v. Cross, 7 id. 48. |