Kent v. Rogers

24 Mo. 306

• Court: Supreme Court of Missouri
• Decided: January 15, 1857
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

The only point in this case is, whether a set-off of a debt due Dillon, one of two joint defendants, can be pleaded against the demand of the plaintiff. The case of Austin v. Feland, 8 Mo. 309, was decided on the authority of Whaley & Blackwell v. Cope, 4 Mo. 283. The case of Austin v. Feland, in its circumstances, is exactly like that now under consideration. The justice and great convenience of allowing a set-off under the circumstances are apparent, and the course is sanctioned by the authority of respectable courts. The case of Finney v. Turner, 10 Mo. 208, does not profess to overrule that of Austin v. Feland, the justice of which commends itself to the sense of every one. If Dillon, the defendant, will use a debt due him individually as a set- off to a demand for which another is jointly liable with him, is any one affected but himself ?

We do not see that the case of the State v. Modrell, 15 Mo. 42, has any bearing on that now under consideration.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.