Hinman, J.
The only question in this case, is, whether the remonstrance is sufficient to set aside the report of the auditors in the original suit: and this is to be determined upon the principles of the common law, without reference to the law of set-off as regulated by statute.
There was no plea or notice of set-off in the case ; and no claim is made that Mr. Hart’s estate is insolvent; or that there is any foundation in fact, for any ground of set-off mentioned in the statute. But it is insisted, that the two hundred dollars of Mr. Starkey’s account, which the auditors rejected, ought, upon common law principles, to be applied in payment or liquidation of a like amount of the charges against him.
The principle, however, that disconnected and independent claims can not, as a general rule, (except by agreement, or by virtue of the statute of set-off,) be applied for the purpose of cancelling each other, is not denied. But the claim is, that it has no application to the case ; that, in the action of account, any matter which is the proper subject of account, whether connected with the claim for which the suit is brought or not, may be taken into consideration, by the auditors, and settled; and that, at any rate, any account which the defendant may have, may be considered and applied in liquidation of arrears due on the account for which the suit is brought.
We do not understand the law to be so: on the contrary, we had supposed this action had always been considered rather more technical than any other. In 1 Bac. Abr. 31. tit. Accompt, (Gwil. ed.) it is said, that in consequence of the proceedings being difficult, dilatory and expensive, the action is now seldom brought, if the party have any other remedy. Hence, in England, and in most of the states where they have courts of chancery, the action is nearly superseded, by a bill in equity. 1 Story Eq. 431. And Bronson, J., in McMurray v. Rawson, 3 Hill, 59. speaking of the practice in New-York, says, it does not appear that more than one action of account was ever brought before, in that state; and he expresses the opinion that the experiment would not be repeated. In thi§ state, the action is more common; and, having been modified, by the simplicity of our practice, has not been thought to be [186]*186much more dilatory or expensive than other actions. But we have not made it, as counsel seem to suppose, like our action of book debt, a remedy for the recovery of a balance resulting from numerous items of account, not particularly mentioned in the declaration or plea : on the contrary, when the defendant is charged as bailiff in this action, the declaration alwavs describes the goods or other estate of which he has the care and management; and if he is charged as receiver of moneys, it must be specified by whose hand the money was received. 2 Sw. Dig. 564, 5. McMurray v. Rawson, 3 Hill, 59. Vin. Abr. tit. Account. W. Walker v. Holyday, Com. Rep. 272. The reason for so much particularity is, that the defendant may know the nature of the claim against him, and how to defend against it.
But this reason is equally strong in the case of a defendant. He ought not to surprise the plaintiff with matters of set-off, of which he gives no notice. He may go into any defence connected with the account to settle which the suit is brought; as that it was never due, or that he has paid it; but he cannot go into other accounts, of which no notice has been taken in the pleadings, unless, indeed, they are so connected with the account for which the suit is brought, that the one cannot be settled without the others are also. Upon any other principle, you would have, in this action, the strange practice of requiring the plaintiff to state, in the declaration, by whose hands the defendant received money, as has been done in this case, and would hold the declaration to be bad, if the statement was not made ; and yet would permit him to go into evidence of money received by any other hand than the one stated ; and with no other question or issue before the auditors, than whether the plaintiff or the defendant is in arrear upon the account mentioned in the declaration, you would suffer a defendant, by way of set-off, to go into any independent matters of account he might have against the plaintiff. Such a claim as this requires no argument to answer it. Separate and distinct actions are given for the recovery of distinct claims; and, unless they have originated out of the same transaction, or, by some agreement, are so connected as to make it unjust that any thing but the balance should be recovered, they must always be pursued. Gunn v. Scovill, [187]*1875 Day 113. McLean v. McLean, 1 Conn, R. 400. Nichols v. Alsop, 9 Conn. R. 357.
What, then, is the nature of the claims of the parties in this case? Are they, in any manner, connected with each other ? They do not appear to have originated out of the same transaction. In this respect, they seem to be entirely independent. Mr. Starkey’s two hundred dollars was part of the sum of five hundred, which, at two different times, he paid or delivered over to Mr. Hart; but for what purpose appears only by the receipt given on the 16th of March, 1837 ; and it is only by inference from this, that any part of it can be said to have been paid in consequence of the claims which Starkey had in his hands to collect. But if this may be inferred in regard to the three hundred dollars, from the fact, that he was to get his pay for that sum out of moneys he might thereafter collect; no such inference can be drawn in regard to the two hundred dollars, because it appears from the same receipt, that this sum was received for safe-keeping merely, and was to be returned, not paid, when called for. Regularly, nothing but Mr. Starkey's charges for his services and commissions in collecting the debts in his hands, and for money paid over in consequence of such collections, or in anticipation thereof, can be said to originate out of the transaction of the collection of those debts; and as it is only for them, that he is called upon, in the declaration, to account, he can not go into any other transaction between him and Mr. Hart, unless, by some agreement, it is connected with the debts. It was said, that inasmuch as the two sums were, at least in part, delivered over at the same time, and were evidenced by the same receipt, they became one sum, and ought, therefore, to stand upon the same footing in regard to their application. This might have been so, if the parties had not chosen to distinguish them; but they had a right to apply them as they pleased ; and the receipt appears to have been carefully drawn for the very purpose of keeping them distinct.
As then it does not appear, that the payment of the two hundred dollars was caused by the transaction out of which Mr. Starkey’s indebtedness accrued, was there any agreement that this money should be applied in satisfaction of that indebtedness ? The receipt itself answers this question. It says, the money was to be returned, when called for; and that [188]*188it was delivered to Mr. Hart for safe-keeping merely. It -cannot, therefore, upon any principle, be applied in payment of that indebtedness.
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Hinman, J.
The only question in this case, is, whether the remonstrance is sufficient to set aside the report of the auditors in the original suit: and this is to be determined upon the principles of the common law, without reference to the law of set-off as regulated by statute.
There was no plea or notice of set-off in the case ; and no claim is made that Mr. Hart’s estate is insolvent; or that there is any foundation in fact, for any ground of set-off mentioned in the statute. But it is insisted, that the two hundred dollars of Mr. Starkey’s account, which the auditors rejected, ought, upon common law principles, to be applied in payment or liquidation of a like amount of the charges against him.
The principle, however, that disconnected and independent claims can not, as a general rule, (except by agreement, or by virtue of the statute of set-off,) be applied for the purpose of cancelling each other, is not denied. But the claim is, that it has no application to the case ; that, in the action of account, any matter which is the proper subject of account, whether connected with the claim for which the suit is brought or not, may be taken into consideration, by the auditors, and settled; and that, at any rate, any account which the defendant may have, may be considered and applied in liquidation of arrears due on the account for which the suit is brought.
We do not understand the law to be so: on the contrary, we had supposed this action had always been considered rather more technical than any other. In 1 Bac. Abr. 31. tit. Accompt, (Gwil. ed.) it is said, that in consequence of the proceedings being difficult, dilatory and expensive, the action is now seldom brought, if the party have any other remedy. Hence, in England, and in most of the states where they have courts of chancery, the action is nearly superseded, by a bill in equity. 1 Story Eq. 431. And Bronson, J., in McMurray v. Rawson, 3 Hill, 59. speaking of the practice in New-York, says, it does not appear that more than one action of account was ever brought before, in that state; and he expresses the opinion that the experiment would not be repeated. In thi§ state, the action is more common; and, having been modified, by the simplicity of our practice, has not been thought to be [186]*186much more dilatory or expensive than other actions. But we have not made it, as counsel seem to suppose, like our action of book debt, a remedy for the recovery of a balance resulting from numerous items of account, not particularly mentioned in the declaration or plea : on the contrary, when the defendant is charged as bailiff in this action, the declaration alwavs describes the goods or other estate of which he has the care and management; and if he is charged as receiver of moneys, it must be specified by whose hand the money was received. 2 Sw. Dig. 564, 5. McMurray v. Rawson, 3 Hill, 59. Vin. Abr. tit. Account. W. Walker v. Holyday, Com. Rep. 272. The reason for so much particularity is, that the defendant may know the nature of the claim against him, and how to defend against it.
But this reason is equally strong in the case of a defendant. He ought not to surprise the plaintiff with matters of set-off, of which he gives no notice. He may go into any defence connected with the account to settle which the suit is brought; as that it was never due, or that he has paid it; but he cannot go into other accounts, of which no notice has been taken in the pleadings, unless, indeed, they are so connected with the account for which the suit is brought, that the one cannot be settled without the others are also. Upon any other principle, you would have, in this action, the strange practice of requiring the plaintiff to state, in the declaration, by whose hands the defendant received money, as has been done in this case, and would hold the declaration to be bad, if the statement was not made ; and yet would permit him to go into evidence of money received by any other hand than the one stated ; and with no other question or issue before the auditors, than whether the plaintiff or the defendant is in arrear upon the account mentioned in the declaration, you would suffer a defendant, by way of set-off, to go into any independent matters of account he might have against the plaintiff. Such a claim as this requires no argument to answer it. Separate and distinct actions are given for the recovery of distinct claims; and, unless they have originated out of the same transaction, or, by some agreement, are so connected as to make it unjust that any thing but the balance should be recovered, they must always be pursued. Gunn v. Scovill, [187]*1875 Day 113. McLean v. McLean, 1 Conn, R. 400. Nichols v. Alsop, 9 Conn. R. 357.
What, then, is the nature of the claims of the parties in this case? Are they, in any manner, connected with each other ? They do not appear to have originated out of the same transaction. In this respect, they seem to be entirely independent. Mr. Starkey’s two hundred dollars was part of the sum of five hundred, which, at two different times, he paid or delivered over to Mr. Hart; but for what purpose appears only by the receipt given on the 16th of March, 1837 ; and it is only by inference from this, that any part of it can be said to have been paid in consequence of the claims which Starkey had in his hands to collect. But if this may be inferred in regard to the three hundred dollars, from the fact, that he was to get his pay for that sum out of moneys he might thereafter collect; no such inference can be drawn in regard to the two hundred dollars, because it appears from the same receipt, that this sum was received for safe-keeping merely, and was to be returned, not paid, when called for. Regularly, nothing but Mr. Starkey's charges for his services and commissions in collecting the debts in his hands, and for money paid over in consequence of such collections, or in anticipation thereof, can be said to originate out of the transaction of the collection of those debts; and as it is only for them, that he is called upon, in the declaration, to account, he can not go into any other transaction between him and Mr. Hart, unless, by some agreement, it is connected with the debts. It was said, that inasmuch as the two sums were, at least in part, delivered over at the same time, and were evidenced by the same receipt, they became one sum, and ought, therefore, to stand upon the same footing in regard to their application. This might have been so, if the parties had not chosen to distinguish them; but they had a right to apply them as they pleased ; and the receipt appears to have been carefully drawn for the very purpose of keeping them distinct.
As then it does not appear, that the payment of the two hundred dollars was caused by the transaction out of which Mr. Starkey’s indebtedness accrued, was there any agreement that this money should be applied in satisfaction of that indebtedness ? The receipt itself answers this question. It says, the money was to be returned, when called for; and that [188]*188it was delivered to Mr. Hart for safe-keeping merely. It -cannot, therefore, upon any principle, be applied in payment of that indebtedness.
Again, it was claimed, that this sum of two hundred dollars, and also the account on which the plaintiffs recovered, were both proper subjects of the action of book debt; and in such case, it was not necessary either that he should exhibit his account to the administrators, or bring a separate action for the recovery of it; but that he had a right to apply one book debt in liquidation of the other, and could not be deprived of this right, in consequence of the plaintiffs choosing to pursue a different form of action. We do not think it necessary to go into the question which would arise here, if the accounts of these parties were both proper subjects of book debt, because we are satisfied that Mr. Starkey’s charge, at any rate, was not a proper subject of this action ; and though the same may be true also, in regard to the account against him, yet inasmuch as either of these accounts, being thus situated, is a complete answer to this claim, it is not necessary, at this time, to investigate the question, in regard to the account for which this suit was originally brought.
We think then, that the right to charge this two hundred dollars, as a book debt, or indeed as any debt, in the ordinary acceptation of the term debt, never existed. It does not appear to have been money borrowed by Mr. Hart; it was not delivered to him for his accommodation at all; but for the accommodation of Mr. Starkey, that it might be safely kept for him. The peculiar phraseology of the receipt seems to imply, that the money should not be used by Mr. Hart at all; but that he should keep it safely, as a special deposit, and return the same identical money, when called for. The parties provide in the receipt, that credit should be given for the three hundred dollars. Of course, credit was not to be given for the other sum ; otherwise, this distinction would not have been made. The manner in which Mr. Starkey was to get his pay for the larger sum,-was specified ; but the two hundred dollars was not to be paid, but handed to him, when called for. Why were these intelligent men so careful to use different words to express the obligation of Mr. Hart in regard to these two sums, if the same thing was intended by both expressions ? This money, then, having been deposited [189]*189with Mr. Hart, to be handed back, only when specially called for, could not become a debt, for which any suit could be brought, until first demanded ; and there is no evidence that any demand has ever been made. Indeed, the evidence is the other way, in regard to any demand of the administrators within the time limited by the court of probate ; for although Mr. Starkey did present an account to them against the estate, yet this sum was not included in it: and indeed, it does not appear that they were ever notified of this claim until after this suit was brought, though they might have been.
We think, therefore, the remonstrance is insufficient to set aside the report: consequently, there is no error in the judgment complained of.
In this opinion the other Judges concurred.
Judgment affirmed.