¶1An off-set to be good, must be a subsisting demand at the time of the commencement of the action — such as the defendant could then have maintained an action on. A surety has no right of action against his principal, until he pays the money for which he is bound as surety, and as that was not done in this case, until after process sued out by the plaintiff, the defendant had no demand against Wynne when this suit was commenced, and therefore it could not be the subject of a set-off in this suit.
¶2The Court below appears to have considered the payment of the surety debt a good off-set, because it was paid before service of the writ. That this is not correct, will be obvious, when it is considered, that if thé suit had been brought by Wynne himself, and the surety debt paid by the defendant after the writ was sued out, it would not have been a good offset against Wynne, because it would not have been a debt subsisting against him at the time he commenced his action, and it is only when there are mutual or subsisting-debts at the time the action is brought, that one can be set-off against the other. Such being the case as between the original parties to the transaction, the assignee cannot certainly be in a worse condition; yet the charge of the Court considers that a good off-set against the plaintiff, which would not be good if the suit had been by Wynne, the payee of the note. The question of notice has no application in this case; the set-off referred to, was not good, not because the defendant had -no notice of the assignment, but because he had no claim against Wynne until after the action was commenced.
¶3It follows that the Court erred, both in the charge given, and the charge refused, and the judgment must therefore be reversed, and the cause remanded.