Hamilton v. Van Hook
Texas Supreme Court
Error from Ellis. Tried below before the Hon. N. M. Burford. This suit was instituted by Van Hook, the defendant in error, against Hamilton, the plaintiff in error, and one Thomas H. McCray, upon a jmomissory note for six hundred and thirty dollars. No service of process being obtained on McCray, the suit was dismissed as to him.
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Error from Ellis. Tried below before the Hon. N. M. Burford. This suit was instituted by Van Hook, the defendant in error, against Hamilton, the plaintiff in error, and one Thomas H. McCray, upon a jmomissory note for six hundred and thirty dollars. No service of process being obtained on McCray, the suit was dismissed as to him. The defendant, Hamilton, pleaded by' way of set-off an accepted' draft for a thousand dollars, drawn by the superintendent of the Tellico Manufacturing Company upon the president of the same, and averred that the plaintiff was a member of the company, and that the…
1Opinion of the CourtBell, J.
We are of opinion that there is no error in the judgment of the court below for which the same ought to be reversed. The general rule undoubtedly is, that sekoffs must he mutual and due in the same right with the debts sued for. (2 Tex. R., 166.) An exception to this rule, however, is allowed, where the party against whom the set-off is pleaded can be shoAvn to be insolvent. In that case it would be inequitable to permit the party AVho Sues, to recover, leaving the defendant who holds a just demand for which the plaintiff is liable, without any remedy to enforce its payment. The courts of…
2Cited by19 opinions
- Goldstein v. Union National BankTexas Supreme Court · 1919
- Bitter v. County.Texas Commission of Appeals · 1928
- Neely v. Grayson County National BankCourt of Appeals of Texas · 1901
- Bolin Oil Company v. StaplesCourt of Appeals of Texas · 1973
- Greathouse v. GreathouseTexas Supreme Court · 1884
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