English v. Wilson

34 Ala. 201

Opinion

STONE, J.

There is not enough in this record to enable us to affirm that the circuit court erred, in rejecting as evidence the specified portions of Mrs. English’s answer as garnishee. She had only the right- to deny, “ upon oath, the truth of the facts proposed to be sworn to by the plaintiff;” and as we are not informed that the portions of the answer rejected, were a denial of any fact proposed to be sworn to by the plaintiff, we must intend that the circuit court did not err in this particular. — See Jordan v. Owen, 27 Ala. 152.

[2.] Neither did the court err in the qualification which it gave to the charge, as given at the instance of defendant. — Hawkins v. Gilbert, 19 Ala. 54.

[3.] The trial was had on the plea of non-assumpsit. The court erred in rejecting evidence offered by defendant, as a basis of recoupment. The general issue permitted such defense. — Pamphlet Acts of 1853-4, p. 60 ; Hatchett v. Gibson, 13 Ala. 587; and other authorities on the brief of counsel; Robertson v. Davenport & Patterson, 27 Ala. 514.

Judgment of the circuit court reversed’ and cause remanded.