Lang v. Waters' Administrator

PETERS, J. The action of the court below upon the demurrers will be first considered. The pleadings .in this State are regulated by statute. Pleas with us can hardly be said to have any technical names or technical forms, as at common law. A succinct statement of the facts relied on in bar or abatement of the suit is sufficient, if the facts [634] are so stated that a material issue can be taken thereon. This is the rule that must govern in their construction. — Rev. Code, §§ 2629, 2638. In this case there is no controversy about the first plea. It is only the second, third, and fourth pleas that are objected to by the demurrers. The statement of facts made in the second and third pleas are set up by way of set-off. These will be considered by themselves. They are substantially in the form prescribed by the statute, and use the language given for such pleas in the schedule of forms appended to the Code. In such a case, a statement of facts that would support an action of debt or assumpsit would be enough to make such pleas good. We think the facts in these pleas are sufficient for this purpose. In the first, the allegation is, that the plaintiff, at the commencement of the suit, was indebted to the defendant in the sum of six thousand dollars, due March 1, 1863, “by an unliquidated demand” of that date,' and the defendant insists upon this debt as an offset. The other plea in this series is almost in the same words, except it is stated that the set-off is founded on a “liquidated demand” for fifteen thousand dollars, which is also insisted oh as a set-off to the plaintiff’s debt. Such pleas are very clearly within the purpose and the language of the statute, and according, to the form of pleas prescribed in the Code. This is enough. — Rev. Code, § 2642; ib. p. 673, Form Set-off, The demurrers to these pleas were properly overruled. If, under such pleas, the defendant should offer proof of an unliquidated demand sounding in damages merely, it should be rejected; because such demands are not the subject of set-off under our statute. And there-is no set-off at common law. — Revised Code, § 2642; White et al. v. The Governor, use, &c., 18 Ala. 767. The fourth plea, which is numbered Jive in the record, is defective. It does not show any indebtedness on the part of the plaintiff to the defendant, or any agreement by the plaintiff with the defendant to receive the two hundred •bales of cotton in discharge or satisfaction of the debt sued for. This is necessary. A suit at law for the payment of a certain' sum of money on a contract, is, in effect, a suit [635] for a specific performance. — Robinson v. Bland, 2 Burr. pp. 1077, 1086; Rudler v. Price, 1 H. Bl. 547. The answer to such an action should show performance, or that the contract was such that the defendant was not bound to perform it, or had been excused or discharged by the plaintiff’s agreement, or by operation of law. Therefore, the plaintiff could not be required to receive the cotton on a contract to pay money, unless he had in some way bound himself to do so, or unless the law so compelled him; and the facts stated in the plea should show this. — Rev. Code, §§ 2648, 2649. A note payable in dollars can only be discharged by a payment or tender of legal tender funds. And baled cotton is not such funds. — Const. U. S., art. 1, § 10, cl. 1; Paschall’s Const. U. S. p. 153; Legal Tender Cases, 11 Wallace, 682. To the defects of this plea, one of the demurrers is especially directed. The court therefore erred in overruling it. It. is, however, contended by the learned counsel for the appellee, that this was error without injury. It does not so present itself to us. Eor aught that otherwise appears, or can be legitimately inferred from what is exhibited in the record, it may have been upon this plea that the jury founded their verdict. A general finding, on all the pleas, supports such a presumption upon the evidence in this case. There are-one or two other objections made to the ruling of the court below, which need to be settled in order to free the case from their embarrassment in the future. One of them was the objection to filing .additional pleas after issue joined on the first plea. There was no error in this. The defendant is authorized, by leave of the court, to file as many several pleas as he may be advised are necessary for his defense. ' If the court permits the pleas to be filed, this is sufficient leave to bring its action within the statute. Rev. Code, § 2639; Shep. Dig. p. 727, §§ 305, 306. The court has also clearly the power to enlarge the time of the pleading. This is a matter of discretion, and it should not be refused, when it tends to the administration of right and justice. — Rev. Code, §§ 2662, 2663; Const. Ala. art. 1, § 15. And in the exercise of this discretion, the court be [636] low must be the judge whether it is properly or improperly administered. It is not a subject of error and revision here. — Bobe v. Frowner, 18 Ala. 89; Newman v. Pryor, 18 Ala. 186. The allowance, then, of the additional pleas was not erroneous. The recalling the witness who had been examined, under the facts in this case, and his re-examination, was also matter of discretion in the court below, So was the admission of additional evidence by the defendant after he had closed the examination of his witnessés. There is no peremptory statute upon this branch of practice which forbids the court so to act. It is a discretionary power, and it is not to be presumed that it will be used otherwise than in furtherance of right and justice; and this is the end of all law. Ipsce leges capiunt ut jure regcmtur, — 3 Chitt. Gen. Pr. pp. 901-2, marg.; Coke’s Litt, 174, b. The wife may lawfully become the agent or attorney of the husband, and her acts will bind him, when she acts as such within the compass of her authority. — Story’s Agency, § 7, and cases cited; Lyon & Co. v. Kent, Payne & Co., 45 Ala. The wife is also a competent witness for the husband in all “ suits and proceedings before any court or officer, other than criminal cases,” except in certain instances, in suits or proceedings by or against executors or administrators.— Revised Code, § 2704; Robison v. Robison, 44 Ala. R. 227. There was no error, then, in permitting the wife to testify as a witness for the husband in this case in the trial in the court below. It hardly needs remark, that the wife’s conversations with the husband are incompetent, 'unless they are a part of the res gestee-. What she told him to do with the cotton or the Confederate money was not of that character. Such declarations were improperly admitted.— Thompson v. Bowie, 4 Wall. 463; 1 Greenl. Ev. §§ 108, 109, et seq. There can be no doubt, under the law as settled by this court before the statute of February 14th, 1867, an agent was competent to prove his own authority. — Gayle v. Bishop, 14 Ala. 552, 554. But since the statute, any reasons which [637] might then have existed against it are certainly removed. Interest does not now disqualify a witness in any way. In civil cases all are competent, unless executors or administrators are parties, under certain circumstances. — Revised Code, § 2704 The wife, then, was a competent witness to prove her agency, in a suit where her husband was a party. We purposely omit any notice of the charges given or refused by the court, because the case will have to be sent back for a new trial, and the charges can not be discussed without the expression of some opinion on the evidence, which might be misconstrued or improperly used on a new trial. The judgment of the court below is reversed, and the cause is remanded for a new trial.