Walker v. McCoy

Á. J. WALKEN, C. J. The defendant’s cause of action against the plaintiff was recoverable only in an action of trespass de bonis asportatis. The law does not prescribe or fix any measure of damages in that action. The plaintiff’s demand was, therefore, one “ sounding in damages merely.” For his cause of action he had a right to demand, not only such special damages as he might prove, but also such vindictive damages as the jury might find. The defendant’s demand was, therefore, precisely such as is excluded from the statute of set-off by the decisions in Holley v. Younge, 27 Ala. 303 ; and Gibson v. Marquis, 29 Ala. 668. The argument for the defendant is, that his demand consisted, in part, of a right to recover the actual expenses incurred in regaining his property, when it was taken and carried away by the plaintiff'; and that that part of his demand was susceptible of a definite ascertainment, by an application of the rules of the law, and that it may be set off without an infringement of the statute. If this be a sound argument, the special damages in an action of slander, malicious prosecution, false imprisonment, seduction, or assault and battery, might be brought forward under a plea of set-off. This would be productive of great inconvenience and confusion, and there is certainly no warrant, for it in the statute. The right of set-off must always be mutual. — Taylor v. Bass, 5 Ala. 110; Code, § 2240. If the defendant may set off his demand against the plaintiff’s, then the plaintiff would have the like right of set-off, if the attitude of the parties in the suit were reversed. This rule would be violated, by allowing the defendant in this case to abandon all except his special damages, and claim then under a plea of set-off'. If the defendant in this suit were the plaintiff, suing in trespass de bonis asportatis, the present plaintiff would have no right to set off the demand now in suit. He could not say, I will split up your demand, and bring [663] forward my set-off against so much of it as is for special damage. Such a course could not be allowed, -without a plain violation of the statute, which excludes the right of set-off' where the demand sounds in damages merely. Thus, the result of the position taken for the defendant would be, to make his demand rvithin or without the law 'of set-off, at his election. The doctrine of recoupment is not available to the defendant, because the demands of the parties spring out of different transactions. — Hatchett v. G-ibson, 13 Ala. 587. J udgment affirmed.