The Exchange Bank brought suit against Frank Williams as maker, and May C. Wilson as indorser, on a number of promissory notes. The petition alleged that the notes were made by Williams to the J. C. Wilson Coal and Lumber Company, under which name May C. Wilson was at the time doing business, and were indorsed by May C. Wilson. The defendants filed a plea in which they denied that at the time the notes were executed May C. Wilson was doing business under the name of the J. C. Wilson Coal and Lumber Company, and averred that that company was a corporation under the laws of Georgia. They also denied indebtedness on the notes, and averred that “ plaintiff has received from defendant May C. Wilson $874.00 on account of the transaction sued upon, and said plaintiff is indebted to
The defense of set-off was also unknown to the common law, because “ the primitive notion of an action did not admit the possibility of a defendant being an actor and interposing a claim against the plaintiff to be tried in the one suit.” Pomeroy’s 'Code Remedies (3d ed.), § 729 ; Waterman on Set-off (2d ed.), § 10. By the statute of 2 Geo. II, c. 27, § 13, it was enacted that “where there are mutual debts between the plaintiff and defendant, . . one debt may be set off against the other, ” etc. The different States of this country have all passed statutes the practical effect of which is the same as that of the English statute, though varying, somewhat in phraseology. In Georgia, it is provided that “ between the parties themselves any mutual demands, existing at the time of the commencement of the suit, may be set off;” and that “ set-off must be between the same parties and in their own right.”
In Trammell v. Harrell, 4 Ark. 602, the Supreme Court of Arkansas, by a divided bench, held: “A defendant or defendants can not set off a claim dire to him or them by only one or a part of several plaintiffs; nor can one defendant,of several, set off a claim due to him alone, from the plaintiff or plaintiffs ; and whether the claim sued on, or that attempted to be set off, or both, are joint, or joint and several, makes no difference.” Chief Justice Eingo, in a strong opinion, dissented from the judgment rendered; and so pertinent are the views expressed by him in the dissenting opinion to the point now under discussion that we quote therefrom as follows: “ It is well understood that no set-off was allowed by the common law; and that the whole right of set-off, in actions at law, had its origin in certain statutes of England, the first of which gave it only in respect to a single class of demands; but it has been considerably enlarged and extended by subsequent acts of Parliament, so as to embrace generally all liquidated damages or demands upon which an action of debt or indebitatus assumpsit would lie, but only where the demand to be set off is due in the same right, from all of the plaintiffs to all of the defendants. And this I understand to be one of the most prominent and distinct features in all of the acts of Parliament upon the subject, and it is one which appears to have been intro
In Locke v. Locke, 57 Ala. 475,the following language is used: “ If, as the verdict tends to show, the set-off was due to only one ■of the defendants, this would constitute a good defense to plaintiff’s action, but would not authorize a recovery for the excess, for the reason that such recovery would require a change, to that extent, of the parties to the judgment. In fact, it would, in effect, require two. judgments; one in favor of one defendant, for the certified balance, and the other in favor of all the defendants, for the costs of the suit. This can not be done in legal proceedings.” Under the liberal provisions of our law as to judgments in legal ■proceedings, the objection urged by the Alabama court to a judgment for one of the defendants for the excess of his set-off would not apply. Once the facts are definitely ascertained, a judgment to fit those facts can easily be framed. And to the possible objection that the allowance of individual set-offs of one or more ■defendants would give rise to difficulty in the framing of a judgment to fit the facts, it may be replied that the difficulty is one •more of arithmetic than of law. Say that A is plaintiff in an •action on a promissory note for $100, executed by B and indorsed respectively by C, D, and E. A owes C $100, D $200, .and E $300. Each of the defendants answers, separately or jointly as the case may be, setting off Ms individual demand against the plaintiff, and the verdict of the jury is in favor of their contentions. The cross-demand of only one of the defend.ants could be applied to the extinguishment of the note sued on, for the application of a set-off is in the nature of a payment, and ■ of course the original claim could only be legally paid once. But the other defendants, having been haled into court, and having, under the law, set up their counter-claim, would have the right to stay in court until their rights were adjudicated. And so judgment might be entered generally in favor of the defendant C, thus releasing the maker of the note, B, and the other indorsers, ,D and E, and in favor of D and E against the plaintiff respectively for $200 and $300. In Threlkeld v. Dobbins, supra, relied
We have discussed this question at length, not only because of the apparent doubt cast upon it by the decision in the case of Threlkeld v. Dobbins, but also on account of its far-reaching importance to the commercial world. Applying what has been said to the facts of this case, our conclusion is, that, the contract of Williams and that of Mrs. Wilson being several, it was competent ' for the latter to set off her individual claim against that of the plaintiff.
Judgment reversed: