18 Ala. 767 | Ala. | 1851
This was an action of assumpsit, brought by Benjamin Fitzpatrick, as Governor of the State of Alabama, and afterwards continued in the name of the present defendant in error, who succeeded him, against the plaintiffs in error, to recover on a promissory note executed by them on the 28th day of March 1S43, for three hundred and fifty dollars, due the 1st January 1S44, and payable to-Benj. Fitzpatrick, Governor of the State of Alabama, and his successors in office, with interest from date, and which purports to be due on account of the sale of Supreme Court reports.
It appears by a bill of exceptions, that the plaintiff below read said note to the jury and rested his case. Thereupon the defendants, having pleaded non-assumpsit, with notice of set off, offered evidence to prove that in the years 1S40 and 1841, While had furnished for the use of the Legislature of this State and the executive officers, candles; books, paper, quills and other articles of stationary, and penknives, to the amount of said note described in the declaration; that the said articles were furnished, on the orders of the Secretary of State and door-keepers of the two houses of the Legislature, and to them personally, as such officers, and that said articles were actually obtained for and used by said Legislature.
They further offered to prove that like articles had been furnished by defendant White, on like orders, to the same individuals, as officers, &c., as aforesaid, and that they had been paid for by appropriations made by the Legislature for that purpose,
Omitting the consideration of the question, /whether the Governor, in respect of the suit on this note, is to be regarded as the representative of the State, .and- without stopping to inquire, whether the appropriation of this fund by the Legislature will prevent the allowance of the set off claimed by the defendants below, we come to the main question, which is, conceding that the State is the plaintiff, has the defendant, White, the right to set off his cross demand against the plaintiffs demand?
This question may be readily solved by a recurrence to a few elementary, well settled principles and analogies, deducible from the commonlaw. The’first is, that the rightofset off did not exist at common law. The defendant, in the absence of statutory provision, who had a cross demand .against the plaintiff, was required, either to resort to his cross action against the plaintiff, or to file his bill in chancery. Thus stood the law in'England until it was altered by the statute. — 2 Geo. II, c. 22, § 13. The right to plead a set off in any case being dependant upon the statute, the next inquiry is, does our statute confer it, as applicable to suits to which the State is the party plaintiff? The language of the act is general, and provides that, in all cases, where there are mutual debts between the plaintiff and the defendant, the one may be set off against the other, &c., and provision is then made, by which the court may give judgment and award execution against the plaintiff when the defendant’s set off shall exceed the plaintiff’s demand, for the amount of the excess.— Clay’s Dig. 33S. Are actions brought by the State within the purview of this statute? Here again we must resort to the com-' mon law for analogy, and from this it is clear that no action would lie against the State, which is the representative of the sovereignty that resides in the people, except in cases where such action is provided by statute. — Bacon’s Abr. by Bouv. vol.
The cases from the Reports of the U. S. Courts, to which we are refered, arose under statutes which authorised them, so that they furnish no authority for the set off in this case.
The argument that when the State engages in banking, through a corporation, the right of set off attaches against the corporation, as in case of an individual, does not aid the plaintiff in error. The corporation, being invested with the power of suing and the capacity to be sued, is subject to the general law, regulating and controling the remedies which pertain to real persons, unless exceptions be made by the statutes in relation to them. When such corporation sues, cross demands existing against it may, in proper cases, be set off but not demands existing against the State, and wholly disconnected from the business of the corporation. No one would contend that in a suit by the State Bank of Alabama against these defendants, upon a note due the Bank, they would be entitled to plead as a set off the demand here set dp for stationary, &c., furnished the Legislature. There would be no mutuality, although the State owns all the assets of the Bank. So in the case before us — the suit is by the State, or it is not.' If the State be the plaintiff the set off cannot be pleaded, as we have seen, there is no law authorising it. If it be not the plaintiff then there is a want of mutuality, and consequently the evidence of the set off against the State was properly rejected.
Let the judgment be affirmed.