
    Taylor and Evans vs. Weister and Co.
    June 19.
    1. A plea of set-off to apart of the plaintiffs’ demand, and payment of the residue, is a good defence. 1.
    2. Example of such a plea held sufficient. 1.
    Statement of the case.
   Opinion of the Court.

THIS is an appeal from a judgment recovered by Weister, &c. against Evans, &c. in a proceeding by petition and summons, in the circuit court. The petition sets out a note which was executed by Evans, &c. to Henry Washington, for the payment of 1,435 dollars and 82 cents, together with Washington’s assignment thereof to Weister, &c.

1. Among other things, Evans, &c. pleaded that, on the — day of July, and previous to the institution of this suit, the plaintiffs in the petition were, and still are, indebted to the defendants, in the sum of 1,421 dollars 98 cents, being for divers notes and accounts upon divers persons, transferred and assigned by the defendants to the plaintiffs, before that time, at their special request and instance ; and being so, therefore indebted, the said plaintiffs afterwards, to wit, on the — day of — —, at the circuit, &c. agreed and assumed upon themselves, and then and there faithfully promised to pay the defendants the said sum of money ; and which said sum the defendants pleaded by way of set off, according to law, to so much of the plaintiffs’ debt and demand against them ; and they say that they have paid the balance of the plaintiffs’ demand against them, &c.

A plea of set-off to part of the plaintiff’s demand, and payment of the residue, is a good defence.

Example of such a plea, held sufficient.

To this plea there was a demurrer, and the demurer was sustained by the court.

We think the demurrer ought not to have been sustained. There can be no question, as to the propriety of pleading a set-off, as to part of the plaintiffs’ demand, and payment of the residue, and the plea in question contains every necessary allegation of a valid plea of that character. The sum offered by way of set off, is not only alleged to have been owing by the plaintiffs before the commencement of their action, but it is alleged to be still owing, and is charged to have been created on such a valuable consideration as would have authorised a recovery of it by an action in favor of the defendants. A plea thus precise in all its allegations, must be admitted to set forth the existence of a valid and subsisting debt, and when combined with the further averment of payment of the residue of the plaintiffs’ demand, forms a legitimate defence to the action.

The demurrer should, therefore, have been overruled ; and consequently, the judgment must be reversed with costs, and the cause remanded, for further proceedings.  