White v. Word

LIGON, J. The first point arising out of the assignment [445] of errors relates to tbe action of tbe court, in overruling tbe defendant's motion to exclude from tbe jury tbe note for $20 Tyo, wbicb tbe plaintiff in tbe court below proposed to read under bis declaration. This objection is founded upon a supposed material variance between tbe note set out in tbe declaration, and tbe one proposed to be read, in this: tbe declaration, in one count, sets out a note for tbe sum of $20 Ty7, payable “one day after date," and tbe note produced and read to tbe jury is for tbe sum of $20 payable “ one day after,” tbe word “ date ” being omitted. This variance is altogether too immaterial to be regarded. Tbe court will supply tbe word “date,” and intend that tbe note was payable one day after its date. Tbe remaining assignments of error have been already passed upon by this court, in cases wbicb have arisen heretofore, and we are content to follow tbe ruling in those cases. In Thomas v. Hopper, 5 Ala. Rep. 442, it was held, that, in an action against a defendant in bis own right, be cannot offset a debt due to him as administrator. In tbe case under consideration, White is sued for bis individual debt, and be proposes to offset tbe plaintiff’s demand with two notes, tbe one due him as administrator, and tbe other as guardian. This is clearly not allowable. See, also, Harbin v. Levi, 6 Ala. Rep. 399. But it is contended, however, that, if, under ordinary circumstances, be would not be allowed to use these notes as offsets, yet tbe rule is different where it is shown that be has settled up tbe estates of bis intestate and ward, and on such settlement has been charged with these notes; that in such case they become bis individual property, and are sets-off in bis bands. When such settlements take place before tbe issue of tbe writ in tbe action in wbicb tbe set-off is pleaded, this is true, as has already been decided by this court in tbe case of Hall v. Chenault, 13 Ala. Rep. 710. But, we apprehend, tbe plaintiff in error has not brought himself within tbe rule laid down in that case. Tbe writ here appears to have been issued on tbe 19th of February, 1849, and the set off, under wbicb tbe plaintiff in error claims tbe absolute ownership of these notes, did not take place until August, 1852. Tbe [446] suit against bim had been pending more than two years, before he became entitled in his own right to the proceeds of either of the notes¿,proposed as sets-oíf; for, until a final settlement of his guardianship and administration, the money arising from them would have been the assets of his ward, or of the estate of his intestate. There is nothing, then, to prevent him from the operation of the rule, which requires that a set-off, to be available, must be owned by the defendant and due when the writ issues in the suit against him. Harbin v. Levi, supra; Cox v. Cooper, 3 Ala. Rep. 256. It results from what has been said, that there is no error in the record, and the judgment must be affirmed.