19 Ala. 301 | Ala. | 1851
Winston brought a suit at law against McKinley to recover a debt due to him by McKinley individually. McKinley, by his original and amended bill, seeks to set off against this debt a demand due from Winston, as the bill alleges, to a company composed of McKinley and Winston, and several others. This is the object and substance of the bill, and we cannot doubt but it was properly dismissed'; for, independent of all other objections, we think it clear that in the absence of all other intervening equities, one debt cannot be set off against another, unless they are mutual debts j that is, debts due to and from the parties in the same right. Courts of equity put the same construction on the statutes of set off, as do courts of law, and if there is no equity going beyond the statutes, to entitle a party to have one debt set off against another, it must bo shown that they are mutual debts, such as could be set off, the one against the other, under the statute at law, if the controversy were properly pending in that forum. In the case of Blagden, ex parte, (19 Ves. 465,) the petitioner was indebted to Hearn, a bankrupt, who was indebted to the wife of the petitioner before the marriage. The object of the petition was to set off the debt due to the wife, dum sola, against the debt owing by the' husband to tbe bankrupt. The Chancellor said “it must be a strict set off at law, or a case of mutual debt or credit, but here is no pretence for a set off at law, nor is it a matter of set off in' equity; for if the petitioner had sued alone, this court would’ have required the wife as a party.'” The same principle is fully'
