By the Court.

delivering the opinion.

[1.] The motion for a new trial in this case ought to have been granted, upon the ground that the Jury found contrary to the charge of the Court, which charge, in our judgment, was in accordanc'e with the law governing the rights of the parties— consequently the verdict is contrary to law.

*411Gray sued Tyler on an open account for $450 14. On the trial, the plaintiff proved, by one witness (Graybill) two items in the account onty, amounting to the sum of $424 14. The defendant pleaded, as a set-off, an account against the plaintiff for money received by' him for freight and passengers on Monroe Railroad, in the months of November and -December, 1845, $4356 79; also, $596 94 for cash received; — making the total amount of the defendant’s account, $4953 73.

Tyler became the owner of the road in November, and was entitled to the receipts thereof for the months of November and December, 1845. The receipts of those two months amounted, according to the testimony of Graybill, to the sum of $4356 79. Whittle turned over cash to pay debts which had been incurred by the road before Tyler became the owner, $596 94 — thus making the total amount received $4953 73. The disbiu-sements made during the months of November and December, including the $596 94, turned over by Whittle to pay debts which had been contracted prior to that time, amounted to the sum of $4065 85. Now, if we deduct the total expenses of the road for the months of November and December from the amount received during the same time, there will be found a balance due Tyler, the defendant, of $887 88, exclusive of the plaintiff’s account now sued on. Deduct the plaintiff’s account as proved, there still remains $463 74 due the defendant. Graybill, the witness, appears to have been the plaintiff’s cashier to receive and disburse the money made by the road, and acted under Gray’s orders. The money paid over to him by Whittle was applied, by Gray’s order, to the payment of debts contracted prior to November and December, and that all sums received during these months were paid out to debts legitimately due by the said road; but it will be remarked, that the plaintiff had no authority to order the money of Tyler to be applied to any debts due by the road before he became the owner of it in November, although the same might have been legitimcdely due by those who, in law, were bound for the payment thereof. The witness'further states, that a part of the money was paid to debts contracted before Capt. Tyler got possession of the road. For these debts *412Capt. Tyler was not liable, and if the plaintiff ordered his money to be appropriated to the payment of such debts, then he is liable to account to Tyler therefor. Whittle does not testify that the money turned over by him was sufficient to pay all the debts due by the road — that it was about enough to pay all the debts he contracted for the road. Graybill was the witness for the plaintiff, and being his cashier, it is a little remarkable that he cannot speak as definitely in regard to the amount of money paid to debts contracted before Tyler got possession of the road, as he does in regard to 'the other items of disbursement.

• The Court charged the Jury, that the defendant (Tyler) was not liable for the debts contracted for the use of the road prior to his getting possession of it. The testimony shows, that a portion of the money which belonged to the defendant has been so appropriated, and it is to be regretted the witness does not state how much; but the inference is very strong, that the balance of the money received, not particularly accounted for in the items of disbursement, was so appropriated. The money being so appropriated by the orders of the plaintiff, he is as liable to account for it as if it had actually passed through his hands. The Jury having rejected the whole of the defendant’s set-off, and found a verdict for the plaintiff for four hundred and twenty-four dollars and fourteen cents, their finding is contrary to the charge of the Court, and contrary to law.

Let the judgment of the Court below be reversed.