
    
      In the Supreme Court of Pennsylvania.
    MILLER & REIST v. KREITER.
    The right of set-off dates from the time that defendant had notice. One defendant may set off his individual claim against a joint claim against him and another.
    Error to the court of Common Pleas of Lancaster county.
   Opinion delivered May 25, 1874, by

Gordon, J.

Reist, the defendant, by his indorsement of the note drawn by Kreiter to Hostetter, became surety for Kreiter. Hence, as soon as the note was protested, June 10th, 1871, and Reist’s liability as indorser became fixed and absolute, he was entitled to call upon the maker to exonerate him from such liability, and that even before demand was made upon him for payment: Beaver v Beaver, ix Har. 167. His right of set-off, as against any claim Kreiter had against him, may be said to have originated from this period. When, therefore, he paid the note on which he was indorser, May 20th, 1873, he was, by force of his equitable status, put in the same position as though he had paid it at the time of protest. Again, as there is no evidence of the date of the assignment to Bomberger of the non-negotiable note drawn by Miller & Reist, on which this suit is founded, and as Reist had no notice thereof previous to the service of the summons, January 25th, 1872, as against him, it could only be effective from that date; for the rule is, that the period from which to determine the rights of the assignee and defendant, is not the date of the assignment, but the time when the latter had notice : Northampton v. Balliet, 8 W. & S. 311. It follows, therefore, that Riest’s equitable set-off, having arisen before the assignment to Bomberger, he had the right to defalk his claim against the note in suit, and the court should so have ruled.

The counsel for the defendent in error is mistaken in the supposition that one of two or more defendants may not set-off his individual claim against the joint claim of the plaintiff. The converse of this is held in Childerston v. Hammon, 9 S. & R. 67, and Archer v. Dunn, 2 W. & S. 361. Judgment reversed and a venire faeias de novo awarded.  