Harper v. Howard , 3 Ala. 284 ( 1842 )

GOLDTHWAITE, J.

This proceeding is not governed by the rules which might prevail in the ordinary action for money had and received, in which it is probable that the defendant’s right to set off his demand, could not be refused.

The statutory remedy, by motion, is to be governed by the same principles as control motions against other public officers. 'The claim of a sheriff, or of the clerk of a Court, to off-set his private demand against money collected by him, or coming to his hands in his public capacity, would be disallowed without scruple, when the extraordinary powers of a Court were invoked to compel a payment; and we conceive a justice of the peace stands in precisely the same relation to the suitor before him. No public officer ought ever to be permitted to commingle his private claims with his official duties. In this case, the fees for which the plaintiff is liable, had no immediate connex-ion with the money retained by the defendant; they constituted nothing more than an ordinary debt, and if a set-off was now allowed, there is no reason why the same right would not extend to any other indebtedness.

Let the judgment be reversed, and the cause remanded.