119 Ala. 217 | Ala. | 1898
It may be that insolvency alone of the plaintiff in judgment is not a sufficient ground for resort by defendant to a court of equity to set. off á demand held by him against the plaintiff which could have been made available as a defense in the action-at law, and that to support a bill it must be averred that the failure
Tfie complainants, after sufficiently setting up the set-off and averring insolvency of the defendant (plaintiff in tfie judgment at law) set up in tfie bill, as an excuse for not defending at law, their continued sickness. Whilst this is obviously insufficient upon demurrer specifying its defects, yet the defendant in tfie bill may, if fie chooses, accept it as sufficient by not making specific objection by demurrer, pointing out tfie defects, and in tfiat case tfie averment would sustain the bill and relief granted thereon/ A motion to dismiss tfie bill or dissolve tfie injunction for -want of equity would' not lie. Such is, in effect, this case as it comes before us — tfie demurrers not having been passed upon — rand we are compelled to hold tfiat tfie decree sustaining the'motion to dismiss and dissolve tfie injunction was erroneous.
Reversed, injunction reinstated and cause remanded.