Evans v. Sims , 37 Ala. 710 ( 1861 )

R. W. WALKER, J.

We.understand .from-the minute-•entry that the words, “which account is his property,” which form the conclusion of the Sd plea as set out in the transcript, were added to the plea by Way of amendment, after the demurrer had been sustained. The sufficiency of the plea before this amendment was made, is the only question presented by the record; and" the ruling’ of the circuit court on this question is -sustained by the decisions of this court, declaring the law to be, that- a’ defendant, when sued for his individual debt, cannot set off a debt due to a partnership of which he is a member. — Taylor v. Bass, 5 Ala. 110; Jones v. Jones, 12 Ala. 245; Na'l & Brooks v. McIntyre, 31 Ala. 534. The question would have been very different, if there had been an averment, showing the consent of the other parties to the defendant’s use of the demand due the firm, as a set-off in this suit.

Judgment affirmed.