July 1, 1862, to gJ;ant a right Of way through thos.e which by sur· veys should be found to be section's 16 atld3 the school sectrons'which f, it intended giv,e to the future state, of Nebraska. The demurrer to the answer will be DUNDY, J. The foregoing is the opinion of BREWER, J,., and I fully ®ncUr therein.
;", 1 .
and others .". CLEMENTS and others.
«(!ircuz"t Oourt, S. D. Georgia,
UNITED STATES' COURTB-PLEADING-8ET-OFF.,
.A set-off 'maybe pleaded as a defense tq an a,ction br()ught in the United States courts in any state where that plea is permissible by the laws of the lltate. L l ' ',
2.SAM:m';;"REPLY TO SET-O:tri/'. It is not, i11- the of th,e
I:eply to a set-off showing a Iponeyed indebtellness to the defendant, for the plaintiff to show that the defendant has personal property in his possession b'elonging to the plain, tiff. which the defendant will not restore to the plaintiff. (Syllabu8 by the Court.)
Lanier Anderson,fof plaintiffs.
Rutherford, for defendants.
SPEER, J; Frick & Co. have brought suit Clements and others as principals, and M. J. Hatcher & Co. as indorsers, on two promissory notes for a.bout $375 each. The makers of the notes make no defense. Hatcher & Co. defend on the ground that Frick & Co. are indebted to them for various sums, growing out of certain cross-obligations arising under the contract by which Hatcher & Co. became indorsers 'for Clements and others. Now, this is an action at law, and a set-off is permissible. In Partridge v. Insurance Co., 15 Wall. 573, it is distinctly' held by the supreme court of theUilited States that a may be pleaded, as a defense to an action brought in the United States courts iIi any state where that plea is permissible by the laws of the state, and set-otris a familiar plea in Georgia. It is sought; however; to reply to the plea of set-off, (evidence in support of which, if worthy of belief,presents distinct matters ofindebtedness on the part of the plaintiffs to the defendants Hatcher & Co.,) by replying that the defendarits' Hatcher & Co.' have in their possession, under the same contract, certain engines and other personal 'property belonging to the plaintiffs, which they refused. to deliver to plaintiffs; and it is sought to oppose the value of these engines to the setoff which Hatcher & Co. have proven. Necessarily that involves the idea of unliquidRted 'damages depending on tortious conduct. If this
UNITED STATES V. SAYLOR.
had beeJl a suit ill equity, and the allegations were that Hatcher & Co. were insolvent, or that the plaintiffs could not rElcover damages from them for the custody and detention of their engines, there might be soma propriety in this reply. It is, however, an equitable reply to a legal. defense, and cannot, in. the opinion of the court, be entertained at common law. ltjs; not alleged that HatGber& Co. are irresponsible, nor could such .evidence be heard in an, action at common law. The plaintiffs can bring their action against Hatcher &Co. for trover,and recover tpeirengines, ifthey are entitleli to do &0. 'They may either,recQver the property itself, or its highest value, since it w,rongfully by Hatchel' & Co. So it is not a proper reply to Hatcher & Co.'s claim for commissions, etc., that they refused to tum over these engines, and the is,excluded. The plainWfs thereupon took jwlgmentagainstthe maker of the and the action as to Hatcher & Co. .
v. SAYLOR aJld others.
«(Jf;rc'ldi ,@ourt, E. D. Michigan. !January 27, 1887"
, Where a postmaster rented a post-office for the .government at $1,000 per year, and received a secret rebate of $150 from his· landlord, and also sublet portions of the space so J:ented ,for a news-stand and a confectionery stand, and receive,d rent therefor,. held, that he. and the sureties upon his bond were liabletd tpegovernment such rebate and r e n t . ' It is no defense to such c1aim for the rebate that the defendant had incurred expense in procuring and tittingup boxes, making repairs, etc., for which no allowance was made by the department; It isnodefense to the claim for rant that the specfalagents of the departmenthad frequently visited the office, seen the sUb-tenants in possession, and wade no· clllim for rent, it appearing that the department had no knowledge of these facts.
OF SPECIAL AGENTS.
GOVERmfENT-RENT OF OFFICE.
(Syll(J,b1f8. by the Oourt.)
This was an action against principal and sureties upon a bond given by defendant Saylor, as postmaster at East Saginaw, in this state. Two breaches were averred in the that defendant had turned vO,uchers for rent to a much &reater amount than the rent actually paid; second, that he sublet to different persons portions of the post-of.fice building, and received rent therefor, Which 4e failed to report to the department. Plea, that if the said did 8ubletas charged, and received :rent therefor, the plaintiff, by its proper officers,. had full knowledge, during all sMh period, of the 'facts of such subletting, and the receipt by said defendant of moneys tWerefol'i that defendant openly treated saidmoneys so belongingtp himself individually, for which ,he was not accountable to plaintiff in his capacity as