Cobb v. Wilson

Decided October 15, 1882

Mississippi Supreme Court · decided 1882-10-15

Hon. J. W. BuchaNAN, Judge. This was a suit on an account for $54, brought in a justices’ court by It. B. Cobb against the appellees. They pleaded, as an off-set, &n itemized account for $56 goods furnished the plaintiff, and their account closed with this item : “ Dec. 18, 1880, To cash, $100.” The credits were $49 in work, $1 in cash, and $60 in cotton. All the items were admitted in both accounts,'which were identical, saving the $100 item of set-off, which was contested.

Relies on Collins v. Groseclose

Decided 1882-10-15

Cooper, J.,

¶1delivered the opinion of the court.

¶2The demand of the appellees is not such as may be availed *345of as a set-off in this suit. Their right is to pursue the plaintiff in an independent action for the negligent performance by his intestate of the duties incident to his employment. Neither debt nor indebitatus assumpsit could be maintained; but resort must be had to a special action in the case. Collins v. Gronclore, 40 Ind. 414; Martin v. McAllister, 2 Yerg. 111; Gillett v. Mawman, 1 Taunt 137 ; LeLoir v. Bristow, Campb. 134.

¶3Judgment reversed.