
    JAMES MORRISON, vs. SALLY FURNHAM & al. adm’rs.
    
    
      On an appeal from a judgment of the Scott circuit court.
    
    17 Oct. 1817.
    Mutual subs;surK »sthe payment; of money may (,mder . "f under the general issue
   Judge Logan

delivered the opinion of the court.

The appellees, as administrators^ declared in assumpsit against the appellant, for the making, by their intestate, a quantity of powder for him, under a special agreement between them. To which the appellant plead the general issue, with notice to setoff an account annexed thereto for ⅛ quantity of salt-petre, brimstone, &c. charged to intestate at stipulated prices. This account the court, upon a motion for that purpose, excluded. To that opinion the appellant excepted, and has appealed to this court.

Mutual subsisting assumpsits for the payment of money, may, properly, be set-off under the general issue, with notice of the set-off. Whether the account offered is of that character, or constituted a part of the agreement declared otl-> was, we apprehend, the subject of evidence; and ought not, therefore, to have been excluded by the court from what appears on its face.

Wickliffe for appellant, Pope for appellees.

The judgment must, therefore, be reversed, with costs against the assets, &c. and the cause remanded for a new trial.  