delivered the opinion of the Court:
As this case must go before another jury, we shall not consider whether the plaintiff should recover at all, or, if at all, what amount, the evidence on these points being contradictory. It is very clear that this recovery is for too large a sum, even *262as tested "by the plaintiff’s own evidence. The plaintiff swears, Cassell was to charge nothing if plaintiff should be convicted, but in case the defense should be successful, he was to charge §100. He further states, that, before bringing this suit, he told Cassell he was. to attend to the defense for a hundred dollars, and offered"to balance his account out of the money in controversy. By his own evidence, there was still §50 due Cassell, yet the jury clearly allowed the plaintiff his claim, without deducting even this amount.
It is said, however, the fees were due the firm of Ingersoll & Cassell, and could not be set off in a suit against Cassell alone upon his individual debt. But this is not a question of set-off. There can be no doubt but that when the plaintiff deposited the money with Cassell, to secure him upon" the bail bond, it was with the understanding that Cassell’s fees, whatever they were to be, should, on a settlement, be deducted from the money in his hands. His services would then have been fully rendered, and his fees earned, and, even if nothing was expressly said upon the matter, the unavoidable inference, from the nature of the transaction, would be, that Cassell was to retain his fees, and it is not claimed, by the plaintiff, in hi's testimony, that he was not to do so. The substance of the transaction, on the plaintiff’s own testimony, was simply this: the plaintiff deposited with Cassell §250 to indemnify him as his bail, with the understanding that Cassell should account with Hays after the termination of the suit, and on such accounting the fees should be paid. On the testimony of the plaintiff alone the judgment is too large.
The judgment is reversed and the cause remanded.
Judgment reversed.