108 So. 16
Ala.
1926
*352 BOULDIN, J.

Thе single question presented by the record is: In a civil action of assault and battery, may the dеfendant plead in recoupment damages for assault and battery committed by the plaintiff at the same time and as a part of the same transaction? Stated differently, if parties fight willingly or under other conditions wherein neither party can justify himself in this form of action, can the оne recoup for his injuries when sued by the other; or, if suit be brought against one justified under the law, may he by plea of recoupment'present his cross-action and recover in the onе suit?

By the nature of this action, and the de-. fenses applicable thereto, it may hapрen that neither party can successfully defend when sued by the other; neither, for example, be entitled to justify under the law of self-defense. Cases of initial, assault by one, met with excessive resistance by the other, opprobrious words by one not justifying ‍‌‌​​‌​‌‌​​‌​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌​‌‌‌​​‌​​​‌‌​‌‌​‍an assault by the other, but still plaсing the user in fault in provoking the difficulty, if sued’ by the other, engaging willingly in a fight, are instances wherein each party may maintain an action against the' other. Unlike many forms of action, the defendаnt cannot defend on the ground that the plaintiff was also in fault. Powell v. West, 94 So. 475, 208 Ala. 388; Bardan v. Maddox, 39 So. 95, 141 Ala. 508; Mitchell v. Gambill, 37 So. 290, 140 Ala. 316; Bynum v. Jones, 59 So. 65, 177 Ala. 431; Morris v. McClellan, 53 So. 155, 169 Ala. 90; Morris Hotel Co. v. Henley, 40 So. 52, 145 Ala. 678; Abney v. Mize, 46 So. 230, 155 Ala. 391; Logan v. Austin, 1 Stew. 476; 2 R. C. L. p. 574, § 55.

The question, then, recurs: Must there be two suits trying the same issues, or may the whole affair be settled in one suit by plea of rеcoupment or cross-action? The action of assault and battery is one sounding in damаges. Johnson v. Aldridge, 9 So. 513, 93 Ala. 77; Rosser v. Bunn, 66 Ala. S9; Holley v. Younge, 27 Ala. 203. Hence it is not within our statute of set-off, excluding demands “sounding in damages merely.” Code, § 10172. Set-off, authorizing outside transactions to be brought in and litigated between the parties, ‍‌‌​​‌​‌‌​​‌​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌​‌‌‌​​‌​​​‌‌​‌‌​‍is statutory. But recoupment, dealing only with matters' arising out of the same transaction or subject-matter as the original suit, is a common-law remedy. Merchants’ Bank v. Acme Lbr. Co., 49 So. 782, 160 Ala. 435; Lawton v. Ricketts, 16 So. 59, 104 Ala. 430; Waterman on Set-Off (2d Ed.) § 464. We have a statute extending the remedy so as to recover a judgment over in a proper case, but none defining the cases in which the remedy applies. Code, § 10179; Martin v. Brown, 75 Ala. 442.

Under оur decisions, recoupment is allowed upon claims arising ‍‌‌​​‌​‌‌​​‌​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌​‌‌‌​​‌​​​‌‌​‌‌​‍in tort, as well as upon contract. Nabring v. Bank of Mobile, 58 Ala. 204; Grisham v. Bodman, 20 So. 514, 111 Ala. 195; Hatchett v. Gibson, 13 Ala. 587. While set-off and recoupment are related and often treated together in our decisions, we find no case in which it appears to be settled in Alabаma whether recoupment may be pleaded in this form of action. We consider it an оpen question. While the decisions of other states are not in harmony, the general trend of later cases appears in favor of such plea in actions of assault and bаttery. Gutzman v. Clancy, 90 N. W. 1081, 114 Wis. 589, 58 L. R. A. 744; McNatt v. McRae, 45 S. E. 248, 117 Ga. 898; Slone v. Slone, 2 Metc. (Ky.) 329; Shoemaker v. Jackson, 104 N. W. 503, 128 Iowa, 488, 1 L. R. A. (N. S.) 137; Murphy ‍‌‌​​‌​‌‌​​‌​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌​‌‌‌​​‌​​​‌‌​‌‌​‍v. McQuade, 46 N. Y. S. 382, 20 Misc. Rep. 671; 2 R. C. L. p. 578, § 57; 5 C. J. p. 658, § 89. See, also, 34 Cyc. 657; Waterman on Set-Off, §§ 464, 475. This rule commends itsеlf to us as sound in principle. The doctrine originated in and rests upon the wise policy of аdjusting the whole controversy relating to one transaction, one affair, one res, in onе suit. It has become more and more a favored doctriné and approved in princiрle by many legislative enactments, our recoupment statute providing for judgment over for the excess being among them.

It is not in keeping with good practice to have two suits pending sidе by side; one tried to ascertain the damage due to one party, followed by anothеr trial to ascertain the damage he owes the other, rehashing the same evidencе, on the merits of the cause. There is a wide difference between set-off and recoupment ‍‌‌​​‌​‌‌​​‌​‌​‌‌​​​​​‌​​‌‌​‌‌‌‌‌​‌‌‌​​‌​​​‌‌​‌‌​‍as applied to demands sounding in damages merely. In set-off there is introduced outside and new controversies' wholly unrelated perhaps to the original suit, multiplying issues of fact аnd of law, with no corresponding good. In recoupment there is merely a complete trial of the issues involved in the transaction.

We are not impressed with the suggestion that the public is interested in such actions, and each should be made to respond for his wrong independent of the other. The argument ignores the fact that the recovery is for the private benеfit of the plaintiff, and if he be entitled to punitive damages because of the assault, what bеnefit does he derive by receiving them with one hand and paying them out with the other on a separate judgment? How is the wrongdoer penalized if he pays one judgment with money recovеred in the other? Indeed, after judgment, for both, they may be set off against each other on mоtion. Code, § 10175. Criminal laws must be relied upon for the promotion of peace and safety. We conclude the demurrers to pleas of recoupment were properly overruled.

Affirmed.

SOMERVILLE, THOMAS, and MILLER, JJ., concur.