Hudnall ex rel. Redus v. Scott

2 Ala. 569 | Ala. | 1841

ORMOND, J.

— In the case of Hall v. Cook, 1 Ala. Rep. 629, we held that the plaintiff could not avail himself of a set-off against a set-off pleaded, or given in evidence, by the defendant; but was restricted to showing that the set-off was not admissible, or was a debt which he was not bound to pay. Tried by the rule laid down in that case, the defence offered by the plaintiff to the set-off given in evidence by the defen-, dant, was clearly inadmissible.

The attempt here was, to reduce the amount of the set-off by showing an error in the original transaction, which led to the execution of the notes sued on. And without' stopping now to inquire whether the plaintiff could, in a Court of law, occupy such an inconsistent attitude as to affirm the correctness of the contract, by suing on it, and at the same time to insist that it was erroneous, we consider the answer given by the counsel for the defendant conclusive. That if there was an error in the original settlement which resulted in the execution of the notes, that error could not be transferred with the note. This is so perfectly clear, that argument cannot illustrate it.

Let the judgment be affirmed.