Smalley v. Trammel's Adm'r
Texas Supreme Court
Error from Payette. Smalley.was indebted to Trammel by note, and Trammel was indebted to Smalley on account, in a less amount—-both under $100. Trammel died, and his administrator sued Smalley on the note, before a Justice of the Peace. Smalley appeared and pleaded his account, in set-off. The Justice ruled out the set-off. The set-off was supported by affidavit, but had not been presented and refused.
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Error from Payette. Smalley.was indebted to Trammel by note, and Trammel was indebted to Smalley on account, in a less amount—-both under $100. Trammel died, and his administrator sued Smalley on the note, before a Justice of the Peace. Smalley appeared and pleaded his account, in set-off. The Justice ruled out the set-off. The set-off was supported by affidavit, but had not been presented and refused. Smalley filed his petition, stating the above facts, and obtained a certiorari, which was afterwards dismissed on motion of the plaintiff, Trammel’s administrator.
1Opinion of the Court
Hemphill, Ch. J.
From the petition for certiorari, it appears that the plea of offset, filed by the plaintiff in error, was overruled by the Justice, on the ground that a debt due by an intestate, in his lifetime, was not the subject of a set-off, m a suit by his administrator.
The very reverse of this has been the established law, decided and recognized, for at least twelve years past. The identical question was raised in the case of Morton v. Gordon and Alley, Adm’rs; (Dallam, 396 ;) and it was held that the set-off should be allowed—and the same doctrine may, no doubt, be found in subsequent…
2Cases cited1 opinion
- Morton v. GordonTexas Supreme Court · 1841
3Cited by11 opinions
- Bandy v. FIRST STATE BANK, OVERTON, TEX.Texas Supreme Court · 1992
- Traders National Bank v. CressonCourt of Appeals of Texas · 1889
- Walker, Administrator v. FearhakeCourt of Appeals of Texas · 1899
- Mitchell v. RuckerTexas Supreme Court · 1858
- Lion Bonding & Surety Co. v. AustinCourt of Appeals of Texas · 1919
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