Duncan v. Duncan

5 Ky. 284

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1811
• Status: Published

Opinion

OPINION of the Court, by

Judge Logas.

The only question in this cause is, whether a plea of setoff in debt is good, alleging; that a particular sum and no more remained unpaid m virtue of the writing obligatory sued on ; and that the plaintiff was at the time of commencing the action, and still remained indebted to the defendant in a larger sum of money, setting forth the amount, for so much money before that time laid out and expended by the defendant for the plaintiff’s use at his, the plaintiff's instance and request, at, &c. *, out of which said sum of money, the defendant was ready and willing, and then offered to setoff and allow the plaintiff so much as would be sufficient to satisfy all the money due by virtue of said writing, and the damages sustained by occasion of detaining the same i

Upon a general demurrer to this plea, the court below-held the pica insufficient, and this is now assigned for error in this court.

The plea seems warranted both by precedent (See “ Story’s Pleadings,” page 218,) and by the spirit of the act of assembly relating to pleas of setoff (See 1 Brad. 233-4 )

Wherefore, it is considered by the court, that the judgment of the circuit court be reversed and set aside ; that the said cause be remanded to the said circuit court, who are hereby directed to enter a judgment overruling the demurrer ; but with leave for the plaintiff to reply to, and for the parties to do whatever may be agreeable t© law in the premises, &c.