Jones & Co. v. Jones

COLLIER, C. J. In Carson & Moore v. Barnes, 1 Ala. Rep. N. S. 93, it was said to be no objection that a note offered to be set off was payable to one of several defendants in the action. “ The defendants are liable jointly and severally to satisfy the plaintiff’s demand, and a debt due from him to either, would be a good set-off against it.” To the same effect is Pitcher & Remsen v. Patrick’s Adm’r, Minor’s R. 321. See also Clark v. McElroy, 1 Stew. R. 147; Gee, Adm’r, v. Nicholson, 2 Stew. Rep. 512. And such was held to be the law in Winston v. Metcalfe, 6 Ala. Rep. 756. In that case W. & P.- were the joint makers of a promissory note payable to J. W, who assigned it to M, the plaintiff; previous to notice of the assignment, P, one of the makers, acquired by in-dorsement a note made by J. W. payable to J. P.- The suit was by M. against W. alone. It was held that W. was entitled to the benefit of the set-off of which his co-maker, P, was the proprietor, against J. W. — on producing it at the trial with the consent of P. thus to use it. See also Mitchell v. Burt, 9 Ala. Rep. 226. Taylor v. Bass, 5 Ala. Rep. 110, is unlike the present case, and belongs to a different class. . There the action was brought against one of several partners upon his individual liability, and the defendant attempted to set off a debt due the partnership. The court said this was not allowable ; if it were, “ the partnership assets would be diverted and appropriated to the payment of one partner’s individual debts, and thereby the creditors of the joint concern, as well as the other partner, would be involved with the payment of debts with which they had no concern, and for which the other partner is in no mariner liable.” Whether, where one of several defendants sets off a demand due to him alone, he can have judgment against the plaintiff for any balance in his favor, is no test of the admissibility of the set-off, and is a question which need not now be considered. [1 Stew. & P. Rep. 19.] The error in the ruling of the county court is apparent from what has been said — its judgment is consequently reversed, and the cause remanded.