Jones v. Blair
57 Ala. 457
Ala.
1876
Check Treatment
STONE, J.

1. A set-off, to be available, must be owned’ by defendant in absolute right, at the time suit is brought. It is not enough that, together with another partner, the defendant owns the claim. It must be such demand as that he, in his own name, or in the names of the defendants sued,, without bringing in the name of a stranger to the suit, may maintain an action of debt or indebitatus assumpsit upon it,, against the party, or all the parties suing, as the case may be. Less than this is not mutuality; Ownership at the time of suit brought is of the very essence of the right.—Bowen v. Snell, 11 Ala. 379; Gildersleeve v. Caraway, 19 Ala. 246; Adams v. McGrew, 2 Ala. 675; McDade v. Meade, 18 Ala. 214; 2 Brick. Dig. 430, §§ 115, 120; Johnson v. King, 20 Ala. 270.

2-3. In Taylor v. Bass, 5 Ala. 110, it was said: “ The debt allowed as a set-off, by the court below, was due to the defendant and another as partners, and there is nothing-in the record to show any assent of the one, that the other should appropriate it to his own use or sole benefit.” There •was nothing in the record in that case to call for the last clause above copied. We have found no authority which authorizes the use of such partnership claim as a set-off against an individual liability, even when the other partner consents to such use. Such consent can not retroact, and vest title in the individual partner sued at the time suit was brought. As we have shown above, and as all the authorities show, this is indispensable. We can not follow the supposed implication contained in Taylor v. Bass, supra. One, and a. sufficient reason for so holding, is, that the defense of a set-off is always optional with the party making it. A party, indebted to a firm, and having a claim against one of its-members, can not know that the several partners will give their consent that such partnership claim may be used by the one partner in discharge of his individual debt. It would be doing such individual creditor a manifest wrong,, *459to leave him exposed to the uncertain fate of meeting a defense to his action, rightfully brought; the authority to make which may or may not be accorded by the other partners. ¥e prefer to let the principle remain in its integrity: that to-render the defense of set-off available, the party making it must be the real owner of the claim, having the right to sue-upon it in his own name, at the time the action is commenced against him.

Tested by these rules, the set-off offered in this case was-not allowable, and the Circuit Court did not err in its rulings..

Affirmed.