
    Isaac R. Houston v. Lyman Fellows.
    
      General assumpsit. Offset.
    
    The defendant authorized the plaintiff to settle a suit pending against him, in favor of a third person, by paying $12. The plaintiff settled the suit, by giving his own note for $13. Held that, without proof of payment of the note, the plaintiff could recover of the defendant $12, under the general counts in assumpsit, on account of the giving of said note.
    A demand in the defendant’s favor, accruing subsequent to the commencement of the suit, from a liability incurred before, is not a legal offset.
    Assumpsit. The declaration contained.only the general counts, to which the defendant plead the general issue, and a plea in offset, containing also the general counts. Trial by the court, May Term, 1858, — Poland, J., presiding.
    In reference to the plaintiff’s claim, the court found the following facts. A suit was pending against the defendant in favor of one Witherspoon, and the defendant employed the plaintiff to settle the same and pay Witherspoon twelve dollars therefor. The plaintiff settled said suit with Witherspoon, by giving his own note for the sum of thirteen dollars, and Witherspoon executed a full discharge of his claim and suit against the defendant. It appeared that Witherspoon had sold plaintiff’s note, but there was no evidence whether said note had ever been paid by the plaintiff or not. The court thereupon decided that the plaintiff was entitled to recover of the defendant the sum of twelve dollars and interest, to which the defendant excepted.
    It was admitted by the plaintiff that, at the December Term, 1847, of the Essex county court, the defendant entered into a recognizance in the sum of twenty-five dollars, for the plaintiff, in a suit he then had pending in said court, in which suit the plaintiff failed, and that since the pendency of this action, the defendant had been compelled to pay, and had paid, the sum of twenty dollars, upon his said recognizance. The court adjudged, upon the facts so admitted, that the said sum could not be allowed in offset, and rendered judgment in favor of the plaintiff against the defendant, for the sum of thirteen dollars and seventy cents. To the decision of the court, disallowing said offset, the defendant also excepted.
    
      G. O. Oahoon for the defendant.
    --for the plaintiff.
   The opinion of the court was delivered by

Bennett, J.

We think the judgment of the county court should be affirmed, in both particulars. The defendant was employed by the plaintiff to settle a suit pending against him, by a third person, by paying twelve dollars, and he settled the same by giving his own note for thirteen dollars, and the claim was discharged. The suit was fully settled by the note of the plaintiff, and the defendant thereby had received money’s worth, and, the general action for money paid, will well lie; and as the plaintiff was limited to twelve dollars, he must be content in recovering that sum, and the interest on it.

The defendant’s claim in offset, accrued from the payment of the money, and this being subsequent to the commencement of the plaintiff’s suit, it is not a legal offset.

The judgment of the county court is affirmed.  