Light v. Henderson

ANDERSON, J. The rule of common law was that a plea of set-off must disclose a state of facts such as [203] would entitle the party pleading to an action, if he were suing as plaintiff.- — Crawford v. Simonton, 7 Port. 110. It must have containel the substance at least of a declaration. — Waterman on Set-Off, 598. The certainty and formality requisite in a declaration was not necessary, but the debt or demand must have been described by amount, the time of its making, its character, and the facts fixing the liability therefor on the plaintiff.— Sledge v. Swift, 53 Ala. 110. While our statute enlarges the 'subject of set-off, it does not relieve the defendant from setting up in his plea an indebtedness from the plaintiff to him. — Code 1907, p. 1202, form 37. Pleas 2, 3,” and 7, while seeking a set-off for the value of certain personal property to the plaintiff, aver no indebtedness for same. It may have been paid for when delivered or at some subsequent time. Moreover, the pleas do not aver that the property turned over to the plaintiff was the defendant’s property. It may have been the plaintiff’s own property that was delivered. The trial court erred in not sustaining the plaintiff’s demurrer to pleas 2, 3, and 7. A plea of failure of consideration, which fails to set out the facts constituting the failure, is bad on demurrer. — Meyer v. Bloch, 139 Ala. 174, 35 South. 705, and cases cited. The fourth plea was subject to the demurrer interposed. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, Simpson, and McClellan, JJ., concur.