Russell v. Smith ex rel. Prince

Upon the above state of facts,

Greer, J.,

delivered the opinion of the court; deciding,

1. That the plaintiff, not being entitled to the possession of the covenant, the statement in the declaration is sufficient excuse for the failure to make profert of the instrument sued on.

2. The technical plea of payment, being irrelevant to an action of covenant, was properly stricken out. It is not enough that the facts of the plea meet the allegations of the declarations; it should also be technically relevant to the action.

3. The demurrer to the plea of set-off was well taken, because mutual debts can alone be pleaded as set-off; and because part of the matter pleaded is a claim for unliquidated damages for repairs done the premises, which claim is not the subject of set-off.

4. The guardian of those for whose use the suit was brought having left the state, his name was rightly used, though it was without his express authority, in order to effect a recovery to which they were equitably entitled. There was no error in discharging the rule.(1)

The judgment of the circuit court was, therefore, • affirmed.

(1) Shelby v. Hearne, 6 Yerg. 512; Trezevant v. McNeal, 2 Humph. 352.