delivered the opinion of the court.

The demand of the appellees is not such as may be availed *345of as a set-off in this suit. Their right is to pursue the plaintiff in an independent action for the negligent performance by his intestate of the duties incident to his employment. Neither debt nor indebitatus assumpsit could be maintained; but resort must be had to a special action in the case. Collins v. Gronclore, 40 Ind. 414; Martin v. McAllister, 2 Yerg. 111; Gillett v. Mawman, 1 Taunt 137 ; LeLoir v. Bristow, Campb. 134.

Judgment reversed.