Cole v. Justice
Supreme Court of Alabama
Writ of Error to the Circuit Court of Barbour. ■ This was an action of assumpsit at the suit of the plaintiff in error against the defendant. The cause was tried upon issues to the pleas of non-assumpsit, set 'off, and the failure of consideration, a verdict returned for the defendant, and judgment rendered accordingly. On the trial, the plaintiff excepted to the ruling of the Court.
Read the full summary
Writ of Error to the Circuit Court of Barbour. ■ This was an action of assumpsit at the suit of the plaintiff in error against the defendant. The cause was tried upon issues to the pleas of non-assumpsit, set 'off, and the failure of consideration, a verdict returned for the defendant, and judgment rendered accordingly. On the trial, the plaintiff excepted to the ruling of the Court. From the bill of exceptions, it appears that the consideration of the note declared on, was the sale of a tract of land by the nominal plaintiff, to James B. Smith; and that the defendant was the surety of the…
1Opinion of the CourtCollier, C. J.
The promise by Bullock to Smith to allow as a payment on the note in question, the amount of the judgment against Douglass if he would'discharge it, though it may have been made to him alone, enured to the defendant, his surety. If a principal obtain a claim against his creditor, which he may use as a set off, in a several action against a surety, the latter may with, the assent of his principal, avail himself of the set off, ás a. defence to the action.” This point was so ruled in Winston v. Metcalf, 6 Ala. Rep. 756. Here the right of the surety to set up as a defence, a matter to which the…
2Cases cited1 opinion
- Winston v. MetcalfSupreme Court of Alabama · 1844
3Cited by2 opinions
- Eads v. MurphySupreme Court of Alabama · 1875
- Graham v. MeddlebyMassachusetts Supreme Judicial Court · 1913