People v. Edwards. consideration raised by the demurrer are, the want of this averment of notice, and that the bond was not properly and legally approved, and does not cover the delinquencies of the officer as tax-collector. No averment of notice is requisite where the matters assigned as breaches lie as much in the knowledge of the one party as of the other. (Chitty's Plead., 328.) The defect in the approval of the bond, if any existed, could not avail the defendants. The object of requiring the approval is to insure greater security to the public, and it does not lie in the defendants to object that their bond was accepted without proper examination into its sufficiency by the officers of the law. The offices of sheriff and tax-collector are as distinct as though filled by different persons. The duties and obligations of the one are entirely independent of the duties and obligations of the other. The case of Merrill v. Gorham (6 Cal., 41) only decides that there is no constitutional inhibition to the exercise of the two offices by the same person. The offices are not so blended that the bond executed for the faithful performance of the duties appertaining to the one would embrace, in the absence of the statute, the obligations belonging to the other. The eighth section of the Act Concerning Official Bonds, which provides that every such bond shall be obligatory upon the principal and sureties therein, for the faithful discharge of all duties which may be required of the officer by any law enacted subsequently, applies only to duties properly appertaining to his office, as such, and not to new duties belonging to a distinct office, with the execution of which he may be charged. The duties of sheriff, as such, relate to the execution of the orders, judgments, and process of the Courts; the preservation of the peace; the arrest and detention of persons charged with the commission of a public offence; the service of papers in actions, and the like; they are more or less directly connected with the administration of justice; they have no relation to the collection of revenue. The difficulty, however, with the demurrer is the fact that the Revenue Act of 1854, by virtue of which the sheriff is made ex officio tax-collector, provides that he shall be liable on his bond for the discharge of his duties in the collection of taxes, and does not require the execution of any new bond; nor is any other bond required than the one executed by him as sheriff, except when he acts as collector of taxes for foreign miners' licenses. The bond in suit must be deemed to have been executed in view of the provisions of the Revenue Act. For moneys collected for foreign miners' licences, and not paid over, the defendants are not responsible; but all delinquencies in the collection of other taxes are covered by the bond in suit. The demurrer was properly overruled. The objection to the judgment arises from the form of the bond upon which the suit is brought. The judgment is against all the People v. Edwards. defendants, jointly, for a sum exceeding $6,000. The bond is in the penal sum of $24,000, for the payment of which the obligors bind themselves, jointly and severally, in certain proportions; two of them each in the sum of five thousand dollars, and four of them each in the sum of four thousand dollars. It was executed previous to the passage of the act of 1857, authorizing of ficial bonds in this form, and, of course, must be construed with reference to the statute under which it was given. The counsel of the plaintiffs suggest in the complaint, as a defect in the bond, that part which apportions the obligation of payment among the obligors. This suggestion is made under the eleventh section of the Act Concerning Official Bonds, which reads as follows: "Whenever any such official bond shall not contain the substantial matter, or condition or conditions required by law, or there shall be any defects in the approval or filing thereof, such bond shall not be void, so as to discharge such officer and his sureties, but they shall be equitably bound to the State or party interested, and the State or such party may, by action instituted as other suits on official bonds, in any Court of competent jurisdiction, suggest the defect of such bond, or such approval or filing, and recover his proper and equitable demand or damages from such officer, and the person or persons who intended to become and were included as sureties in such bond." It is evident from the language of this section, that the defects which are cured upon their suggestion in the complaint, are omissions which, but for the statute, would operate to discharge the obligors. When the bond "shall not contain the substantial matter, etc., the bond shall not be void so as to discharge such officer and his sureties." The clause which is suggested as a defect, is not such, but a limitation upon the individual liability of each of the sureties. There are in fact several distinct obligations in the same instrument. The principal and each surety obligate themselves, jointly and severally, in the specific sums designated, and although all the parties may be included in the same action, separate judgments are required; none can be entered against the parties for any greater amount than that for the payment of which they have respectively bound themselves. Of the surviving sureties, four are bound in the sum of four thousand dollars, and one in the sum of five thousand dollars, and separate judgments against them should have been entered for these respective amounts. Of course the several judgments would be all satisfied upon the payment of the amount found due from the late sheriff. The form of the judgment entered in the Court below, might be corrected without vacating the report of the referee, and such would be the direction of this Court, but for a discrepancy apparent upon the report between the amount, to be credited by the stipulation, and that allowed. As the evi Mount v. Chapman. dence is not before us, this discrepancy is unexplained, and of it- MOUNT v. CHAPMAN. A executed a note and mortgage to B. Subsequently, A and B entered into partnership in the livery business. A was to furnish the stable, hay, and grain, and board B, and B was to attend the stable, the profits to be equally divided, and the share of A was to be applied in discharge of the note. B received the sum of $396, A's share of the profits of the business, and then, after maturity, assigned the note and mortgage to C. C brought suit against A for the whole amount. A plead payment and set-off: Held, that A was entitled to the credit of the payment. In a judgment in a suit on a note bearing an agreed amount of interest, the interest is to be computed and made a part of the judgment, and the judgment should bear the agreed interest. APPEAL from the District Court of the Seventh Judicial District, County of Napa. A statement of the facts appears in the opinion of the Court. C. Harston for Appellant. The decision and judgment are contrary to the evidence in the case. The evidence of Waterman, Anderson, and Solon Chapman, uncontradicted, established by the admissions of Murphy, that while he was the holder of the note, all was paid but one or two hundred dollars. The evidence of defendant, Chapman, shows that not less than six hundred dollars was paid to Murphy on the note before assignment. It requires the defendant to pay interest on a sum of money greater than the principal sum mentioned in the note, at the rate of two and one-half per cent. per month, there being no agreement to that effect. The appellant insists that a new trial should have been granted, and that the refusal to grant it was error. Botts and Sackett for Respondent. One or two of the witnesses testified that they had heard the payee and assignor admit that payments had been made upon the note by which it was reduced to the sum of two hundred dollars but the whole matter is explained by the testimony of Chapman himself, the defendant, which discloses this state of things: Chapman, the maker of the note, and Murphy, the pay Mount v. Chapman. ee, became partners in a livery stable. Chapman owned the stable; he was to furnish the hay and grain. Murphy was to attend to the business, and they were to divide the profits. Murphy received the money, and was to keep Chapman's portion of the profits to liquidate the note. Chapman says, in one place, that at one time it was agreed that the note ought to be credited by the sum of $396. But he says afterwards that they could not agree upon the amount, but he does state most distinctly that he and Murphy never did and never could arrive at a settlement of their partnership account. We contend that until the amount due from one partner to the other had been ascertained and settled, it was analogous to unliquidated damages, and could not constitute the subject of setoff. The case of Fremont v. Coupland, 2 Bingham, 168; 9 Common Law Rep., 531, is exactly in point. This also was a case of stable and horses. The plaintiff sued for rent of stable. The defence was that plaintiff was indebted to defendant for his share of profits, in running a line of coaches. The plaintiff received the fares, and settled with the defendant weekly, the defendant claimed a balance due upon last weekly settlement of $56. Best, Park & Bunough, agreed, unanimously, that there can be no setoff arising out of a partnership transaction, until there has been a final settlement of the partnership account This decision is in accordance with the plainest dictate of common sense. It is utterly impossible that in this proceeding, to which Murphy is no party, the partnership account between Murphy and Chapman can be adjusted. For what amount, then, is Chapman entitled to an offset? It may be that when the partnership debts are paid, there will be no profits to be divided. At any rate, the adjustment must form the subject of a separate action, and until the balance duè Chapman is ascertained, it cannot be pleaded as an offset. BURNETT, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring. On the fourteenth day of March, 1854, the defendant executed a note and mortgage for six hundred dollars, to Henry Murphy, due on the first day of December following, and drawing interest from date at the rate of two and one-half per cent. per month. On the tenth day of May, 1856, Murphy assigned the note and mortgage to plaintiff. This suit was brought to foreclose the mortgage. The defendant plead payment and set-off. The plaintiff had judgment, and the defendant appealed. The first material point made by the defendant's counsel is that the Court below erred in not allowing the defendant the benefit of a payment made to Murphy while he was the owner and holder of the note. It appears that Chapman was the owner of a stable, and that Mount v. Chapman. in the fall of 1855, it was agreed between him and Murphy that Chapman was to furnish the stable, hay, and grain, and board Murphy, and that Murphy was to attend to the stable-the profits to be equally divided between them, and the share of Chapman to be applied in discharge of the note. The stable. was attended to by Murphy until March, 1856, during which time he received various sums upon joint account. It does not certainly appear, from the testimony, whether the parties, by their agreement, contemplated any joint expenses to be paid out of the joint fund, or whether the profits to be divided were the net or gross proceeds. But we think it unnecessary to decide whether they were or were not partners, as between themselves. Conceding that it was a partnership, we think the defendant had the right to a credit upon the note for the amount received by Murphy. There was a special agreement at the time the partnership was formed that the share of Chapman should be applied as a payment upon the note. This condition must have operated upon the minds of both the parties in making the partnership contract. It does not appear that there were any losses incurred by the firm, and it was only necessary to ascertain the amount received by Murphy, as the share of Chapman. The defendant Chapman was made a witness by the plaintiff, and stated that when they looked over their books the last time, about the first day of May, 1856, it was agreed between him and Murphy that the sum of three hundred and ninety-six dollars had been received by Murphy as the property of Chapman, and that the same should be applied as a credit upon the note. That this amount, at the least, was received by Murphy, is clear, from his acknowledgments to other witnesses, to whom he stated that the note was paid except about two hundred dollars. It would seem clear that Murphy alluded to the principal sum of the note, not including the interest. His admission to Chapman, about the first of March, 1856, that he had received as Chapman's portion of the profits between six and seven hundred dollars, was no doubt based upon an incorrect estimate made from memory, and without any reference to the books of the concern. The counsel for plaintiff has referred us to the case of Fremont v. Coupland, (9 Eng. Com. Law R., 531,) as a case directly in point. In that case it appeared that "the parties had formerly been engaged in running a coach from Bath to London, the plaintiff finding horses for one part of the road, and the defendant for another; and the profits of each party were calculated by the number of miles covered by his own horses. The plaintiff received the fares, and rendered an account to the defendant every week. Upon this weekly account, there was a balance due the defendant of two hundred and fifty pounds. It did not appear, however, that any final account had been stated, or that |