Caldwell v. Grundy 1 Sneed 224, 2 Ky. 224

*225It will be necessary only to determine whether the debt plead’ by way of set off, was a mutual debt subsisting at the time this suit was brought, in order to ascertain which dates are material. This suit was commenced on the 5th day of August, 1800, the judgment (part of which the defendant pleads by way of set off) was not obtained until October in the same year: after this judgment was obtained, part of it was assigned to the defendant, but at what time is not stated, and in January, 1801, the plea was filed. If these dates are correct, it is evident there was no debt due and subsisting from the plaintiff or his assignor to the defendant at the time this suit was commenced, and therefore this debt was not pleadable as a set off, without observing upon other objections which might be made to it. The judgment of the inferior court must be reversed with costs, the cause to be remanded to the Washington circuit court, with directions to enter a judgment for the plaintiff on the demurrer, which is ordered to be certified to the said court.