#### W. D. HARRINGTON, assignee, v. GEORGE WILCOX AND W. NASH, Executors.

Money paid by B, the surety of A, is a good set-off against a note payable to A, which was endorsed after it fell due.

This was a case agreed, submmitted to French, J., at the Fall Term, 1860, of Moore county.

The bond on which this action was brought, was made by George Wilcox, testator of the defendants, dated 26th November, 1856, for $286, due one day after date, and made payable to William P. Wilcox, his son. Prior to the making of this bond, W. P. Wixcox borrowed of John Murchison about $400, and gave two notes, with his father, the said George, as his surety for the amount. W. P. Wilcox removed to Mississippi, in the Fall of 1856, and on the day he started, delivered tiie bond, now sued on, to the plaintiff, with a request that he should carry it to John Murchison and get him to accept it, and credit the amount on the notes, which he held on him and his father. This request was made in the presence of George, the father, but Murchison refused to come into the arrangement, saying, that “ the one he had was good enough.’ Subsequently, after the death of the said George, the whole amount of the two notes and interest ($483) was collected, by suit, from the defendants, his executors. The plaintiff after-wards sent the note, in question, to W. P. Wilcox, who endorsed it to the plaintiff, who knew that the executors of George had paid the two notes as stated. The defendants insisted on this payment, as surety, as a set-off.

To meet this plea of set-off, the plaintiff set out the following clauses in the will of George Wilcox, which was made ISth of December, 1856 : “ Item. I will and bequeath to W. P. Wilcox, for the use and benefit of his child, William, the sum of five hundred dollars; this sum to his son and one dollar to himself, with the amount of money I shall have to pay him, I consider a fair and equitable portion of my estate.”

By a codicil, made on the 8th of Janury, 1857, the testator *350bequeathed to William, the infant son of W. P. Wilcox, a negro boy. These legacies have been assented to by the executors. Not including the legacies to the son of W. P. Wilcox, a distributive share of the estate of George Wilcox would have exceeded the sum paid to Murchison.

On the consideration of the case agreed, his Honor being of opinion with the plaintiff on the question of set-off, gave judgment for the full amount of the note with interest and costs, from which the defendants appealed.

No Counsel appeared for the plaintiff in this Court.

Phillips, for the defendants.

Manly. J.

We do not perceive why the money paid by the executors of George Wilcox on their testator’s liability as surety of William P. Wilcox, is not a good set-off in this action. The case states that the note sued on was transferred by endorsement, after it became due, and, moreover, at the time of the transfer, that the endorsee knew of the existence of the counter demand, and so, the debts being mutual, it will follow that, in all points of view, it was a proper case for set-off. The doctrine upon the subject of set-off, under circumstances, like the present, was discussed and explained in Haywood v. McNair, 2 Dev. and Bat. 283, and has been considered, we think, settled, since that day.

We suppose, indeed, it was not intended to renew, here, the questions settled by that case, but to bring forward, through the clauses of the will quoted, a question as to the effect of that instrument upon the set-off proposed.

We have examined the clauses and do not find any thing in them to affect the rights of the parties in this suit. There is no recognition of the testator’s liability as surety for William P. Wilcox upon the notes to Murchison, and, of course, no release to him of his responsibilities to testator, which might arise from that liability.

The testator’s opinion as to the fairness of the division of his estate, hóweyer erroneous and unjust to the son, William, *351does not affect the question as to what is given in the will, or what exemptions are secured thereby. There is no ambiguity in the instrument. The testator admits his liability to pay a sum of money to William, which we take to be the note in suit, (as none other appears) but nowhere expresses an expectation of becoming a creditor of William, either by reason of suretyship or otherwise, and, consequently, no where adds such contingent amount to the legacy left him.

The money then paid by the executors of George, by reason of testator’s surety-ship for his son William, was a subsisting claim against William ,P. at the time of the transfer of the bond, and is, therefore, a proper set-off in the action.

We are of opinion, upon the case agreed, that the judgment below is erroneous and should be reversed, and judgment entered for the defendant.

Per Curiam,

Judgment reversed*