delivered the opinion of the Court :
This suit was brought by Isaac P. Coates, against the firm of Preston, Kean & Co., who are described as bankers doing a general banking business, and was brought on a check drawn by Schuyler S. Gardner on defendants, for the sum of $2190, payable to his own order, and afterwards indorsed by him in writing on the back of the check, and then delivered to plaintiff. The defence, shortly stated, is, that Gardner, the drawer of the check, was, at the time, a member of the firm of Colby, Gardner & Co., which firm was then ■ indebted to the defendant banking firm in a sum in excess of the sum specified in the check, and that at the date the check was presented to defendants for payment, had not then, and has not since had, to his credit in, their bank a sum exceeding $2111.46; that plaintiff was not, at any time prior to the commencement of this suit, a( bona fide owner or holder of the check in suit for value paid by him, and that defendants would allow, as a set-off, the_ indebtedness of Colby, Gardner & Co. to them, which was then in judgment, the full amount of $2111.46, against the claim of plaintiff. To a special plea setting up these facts with the usual formality, the couit overruled the demurrer interposed by plaintiff, and rendered judgment for defendants. That decision was affirmed in the Appellate Court, and now plaintiff brings the case to this court on appeal.
It is conceded in the argument, any defence to this action may be made that could be made had Gardner, the drawer of the check, brought the suit in bis own name to recover the amount due him from the bank. But could the defence set up in the plea be sustained against Gardner if he were suing ? It is apprehended it could not.' It is a familiar principle that debts, to be the subject of set-off, must be mutual be*473tween the parties to the action. That is not the case here. The debt offered to be set off is the debt of the firm against the claim of one of the individual partners. That can not be done, and so this court held in Hilliard v. Walker, 11 Ill. 644.
It is a misapprehension to suppose section 3, chapter 76, Revised Statutes 1874, changes the practice in this respect. Even if that section of the statute has any application to partnership contracts, which is not conceded, still, the debt or claim offered to be set off in this case would not be mutual nor between the parties to the action, and therefore, under the previous decisions of this court, it could not be the subject of set off against the claim of the individual partner. Gregg v. James et al. Breese, 143; Burgwin v. Babcock, 11 Ill. 28; Hilliard v. Walker, id. 644.
There is one ground, however, upon which the judgment must be affirmed. It is averred in the plea that Gardner did not have the amount of money on deposit in the bank of defendants that the check called for. The demurrer, of course, admits that fact. It is apprehended the bank was under no obligation to pay any sum on the check unless the drawer had sufficient money on deposit to his credit with which to pay the check in full. It seems plain the present plaintiff could not recover for a moiety of the check. That, in effect, would be the division of the claim, which the law will not allow. A very different question would be presented if Gardner were himself plaintiff in this suit. Plaintiff could only recover, if at all, on the check, and if the drawer did not have a sufficient sum on deposit in defendant’s bank with which to make full payment, so that it could take up and hold the check as a voucher, the bank was under no obligation to make a partial payment, and could rightfully refuse to pay the check, or any part of it, as it did. In re Brown, 2 Story, 502; 2 Parsons on Notes and Bills, 78.
The judgment of the Appellate Court will be affirmed.
Judgment affirxncd.