Finney v. Denny

122 Ala. 449

Opinion

TYSON, J.

— The pleas of set-off filed by defendant were sufficient under the authority of Lang v. Waters, 47 Ala. 624; Sledge v. Swift, 53 Ala, 110; Rosser v. Bunn & Timberlake, 66 Ala. 89; Form 37 of plea of set-off, Code of 1886, p. 797; Code of 1896, p. 950.

The recital in the judgment, “it was shown in this ease that the only claim of off-set, that defendant had against the plaintiff was that claimed in plea No. 5,” is not conclusive that no injury was suffered by defendant by sustaining the demurrers to his pleas number 2 and 3, if it can be considered by this court for a„ny purpose; non constat, defendant offered no evidence, and very properly, in support of the averments of these pleas.

Judgment reversed and cause remanded.