Appeal from the Circuit Court of Chambers.

Tried before the I-Ion. N. I). Denson.

This was an action brought by the appellee, John D. Denny, against the appellant, Charles E. Finney; and counted upon an instrument under seal executed by the defendant to the plaintiff.

The defendant filed the following pleas: “1. That he has fully paid off and discharged the instrument sued on before the commencement of this suit.

“2. That at the time this suit was commenced the plaintiff was indebted to him in the sum of two thousand dollars, by an unliquidated demand, amounting to two thousand dollars, stated above, to-wit, the 25th of December, 1891, and due at that date to the defendant, which he hereby offers to set off against the demand of the plaintiff, and he claims the judgment for the residue.

“3. That at the time this suit was brought the plaintiff was indebted to him in the sum of two thousand dollars by a liquidated demand amounting to two thousand dollars, stated above, to-wit, the 25th of December, 1891, and due at that date to the defendant which he hereby offers to set off against the demand of the plaintiff, and he claims the judgment for the residue.”

“5. Comes the defendant and for further answer to said complaint, and as a defense to the action of plaintiff, saith that at the time said action was commenced the plaintiff was indebted to him in the sum of two thousand dollars due for money paid by mistake by defendant to plaintiff, on, to-wit, Dec. 25th, 1893, which money plaintiff was not entitled to receive, and which, of right, the plaintiff was due to defendant on said date, which defendant hereby offers to set off against the demaud of the plaintiff, and he claims the judgment for the residue.”

To the 2d and 3d pleas the plaintiff demurred upon the grounds: 1. The pleas fail to state what said unliquidated or liquidated demand was. 2d. That they fail to state when said demand offered to he set off was due. 3d. They fail to show a cause of action by defendant against plaintiff. This demurrer was sustained, and the defendant duly excepted.

Upon issue joined on the 1st and 5th pleas, there ivas verdict in favor of the plaintiff. After reciting the ruling upon the pleadings and the finding of the verdict by the jury, the judgment entry then recites: “It is therefore adjudged by the court that the plaintiff, John D. Denny, have and recover of defendant O. E. Finney the said sum of two hundred and forty dollars as damages besides the costs of this suit, for which let execution issue. It was shown in this case that the only claim of offset that defendant had against the plaintiff was that claimed in plea No. 5. And it further appearing to the court that the instrument upon which this, suit was brought and upon which this judgment is based contains a waiver of exemptions as to personal property, it is therefore adjudged,” &c.

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