Durbon v. Kelley's

IIanna, J. Suit by Miller, assignee, on a note and mortgage. Answer, by way of set off, that said note and mortgage were executed by Durbon to one Kelley, the assignor of said Miller; that afterwards, John IF. Blake, Isaac D. Armstrong and said Kelley executed a joint note to one Clark, who. [184] assigned the same to said Durbon, before said Durbon had any notice of the assignment by Kelley to plaintiff of the instruments sued on; that said Blake and Armstrong were, at the time said Durbon acquired title to said note, and still continued to be, wholly insolvent; nor did they, during any part of said time, own iointly any property subiect to execution. Offer to set off, Ac B. P. Davidson, for the appellant. S. C. Willson, and Claybaugh § Simms, for the appellee. To this a demurrer was sustained. This ruling presents the only point in the case. It will be perceived that there is no averment that said Kelley was the principal in said note. Indeed, so far as the note shows, the makers were all equally liable. This does not make a case within section 58 of the code. It has been held that mutuality, as a law of set off, still prevails, except as otherwise provided by the code. Knour v. Dick, 14 Ind. 20; Blankenship v. Rogers, 10 id. 333. The demurrer was correctly sustained. Per Curiam. The judgment is affirmed, with five per cent, damages, and costs.