Briggs v. Moore

14 Ala. 433 | Ala. | 1848

DARGAN, J.

The proper subject of a set-off, is a debt. The language of the statute is, “In a 11 cases where there shall be mutual debts, &c. one debt may be set against the other, either by being pleaded in bar, or given in evidence under the general issue, on notice given of the particular sum intended to be set off, and on what account the same is due, notwithstanding said debts may be deemed in law of different natures.” Although unliquidated damages cannot be said to be a debt, and cannot under this act be the subject of an off-set, yet where the demand is of such a nature, that indebitatus assumpsit will lie to recover it, as for goods sold, work and labor done, &c. it may be pleaded as a set-off. The Ex’rs of McNeil v. The Administrators of Pollard, decided at the last term; 8 Miss. Rep. 309. Such a demand, although the amount must be ascertained by a jury, is a debt within the intent and meaning of the act.

It is too clear to admit of argument, that an indorser, who is liable to his indorsee for the payment of the note, is an incompetent witness, when called by the indorsee to show the liability of the maker on the note. 5 Whar. Rep. 338; 5 Wend. 181, 665; 8 Watts, 304; 9 Id. 179.

But it is said, as the note was not sued to the first court to which suit could have been brought after the note fell due, we are bound to presume the indorsee is discharged, and therefore, that he was a competent witness. It was not shown when the indorsement was made, nor whether he had been discharged or not. The presumption is, from seeing his in-dorsement, that he is an interested witness; if he has been discharged by release, negligence, or otherwise, the plaintiff in error should have shown it.

There is no error in the charge of the court, nor in rejecting the testimony of the witness Favor.

The judgment of the circuit court is therefore affirmed.