Cox v. Cooper
Supreme Court of Alabama
Error to the Circuit Court of Madison. THE suit in the Court below was brought by the plaintiff in error, as assignee of one Wynne, against the defendant in error, on a note which fell due on the 1st January, 1840. The summons was issued by the clerk on the 5th February, 1840, and executed on the 8th of the same month. The defendant pleaded payment and set off.
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Error to the Circuit Court of Madison. THE suit in the Court below was brought by the plaintiff in error, as assignee of one Wynne, against the defendant in error, on a note which fell due on the 1st January, 1840. The summons was issued by the clerk on the 5th February, 1840, and executed on the 8th of the same month. The defendant pleaded payment and set off. On the trial, the defendant offered in evidence a note made by Wynne to him, for twenty-five dollars, which fell due on the 25th December, 1839; and proved, that on the 7th February, 1840, he paid a judgment which had been obtained…
1Opinion of the CourtOrmond, J.
An off-set to be good, must be a subsisting demand at the time of the commencement of the action — such as the defendant could then have maintained an action on. A surety has no right of action against his principal, until he pays the money for which he is bound as surety, and as that was not done in this case, until after process sued out by the plaintiff, the defendant had no demand against Wynne when this suit was commenced, and therefore it could not be the subject of a set-off in this suit.
The Court below appears to have considered the payment of the surety debt a good off-set, because…
2Cited by10 opinions
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