Case v. Byrne , 12 Ala. 115 ( 1847 )

ORMOND, J.

-We do not consider the waiver of the plaintiffs’ counsel, to extend further, than that he did not object to the pleas not being formally written out, and did not preclude him from raising the question by a demurrer, whether the pleas so indicated by their name, were good pleas in bar of the action, if formally pleaded. The demurrer was doubtless interposed upon the supposition, that the declaration disclosed the fact, that the plaintiffs were man and wife, and that therefore the plea of off-set could not be interposed to an action brought in their joint name. As the declaration did not disclose this fact, the demurrer, as now admitted in argument, was improperly sustained, even upon the concession, that a set-off could not in any case be pleaded, to an aetion commenced by husband and wife.

As the evidence of a set-off could only be introduced under a plea of set-off, the court having by its judgment excluded the plea, rightfully excluded also the evidence. But as it was in proof, that the plaintiffs were man and wife, and the question will be again presented when the cause comes on for trial again in the circuit court, we think it proper to express an opinion upon the evidence.

We can see no reason why the set-off in this case should not be allowed. The debt in suit, and the one offered to be set off, are both due in the same right, as they arise out of the same course of dealing. The wife can be considered in these transactions, in no other light than as the agent of the husband, and he is therefore responsible for her acts, and entitled to the benefit of her contracts. It can make no difference, that the promise of the defendants is to the husband and wife jointly. It is in law a promise to the husband, and he being responsible for the debt created by his wife to the defendants, when acting by his consent, the debt sued on, and the one offered to be set off, are due in the same right, and may be set off, the one against the other.

Morris v. Booth and wife, 8 Ala. 907, was a suit by husband and wife on a promissory, note, made to the wife after marriage. This was evidence that the consideration moved from her, or in the language of the books, that she was the meritorious cause of the action: and therefore, the husband might join her with him in the suit. The consequence of thus joining her in the suit was, that the cause of action would survive to her, and would not go to the personal representative, if the husband died pending the suit; and that therefore a set-off against the husband, which might defeat this right, would be improper. [Bedgood v. Way, 2 Black, 1236; Rose and wife v. Bowles and Read, 1 H. Black, 108; Buckley v. Collins, 1 Salk. 114; Philiskirk v. Pluckwell, 2 M. & S. 393; 1 Chitty P. 31.]

It is scarcely necessary to remark, that no judgment is expressed upon the sufficiency of the declaration, as in the present position of the case, no question arises upon it.

Judgment reversed and cause remanded.