Mitchell v. Rucker , 22 Tex. 66 ( 1858 )

Roberts, J.

The account pleaded in set-off, in this case, consisting of items similar in their nature to those of plaintiff’s account, upon which the suit was brought, constituted a good defence to the action. It is true, that defendant had not placed his claim in condition, to authorize him to recover a judgment against the administrator, should his (defendant’s,) claim prove to be the largest. Such excess he had no right to recover under the pleadings. It was not necessary for defendant to have presented his account duly authenticated; but, without that, it operated as an extinguishment of plaintiff’s debt to the extent that might be established, even to the full amount of plaintiff’s demand. (Smalley v. Trammell, 11 Tex. Rep. 10.)

The allegations of the plea, in connection with the note set out in set-off, do not make it a valid defence ; because it is not shown, that defendant acquired the note before the death of Rucker. As to this part of the answer, the exception was properly sustained; as to the balance of the answer, (to the extent of plaintiff’s demand,) the exception should have been overruled. Judgment is reversed and cause remanded.

Reversed and remanded.