
    Locke, Adm’r v. Locke et al.
    
    
      Action on Promissory Note.
    
    1. Set-off; what proper subject of; when judgment not allowed for excess. A debt due to one of several defendants by a sole plaintiff, is a proper subject of set-off, and where it exceeds the demand in suit it is a good defense to the action, but does not authorize judgment over in favor of such defendant against the plaintiff, for the excess.
    2. Same; what question not raised below, cannot be raised on appeal. The question whether a debt due from an administrator to the defendant, or a debt due from the plaintiff’s intestate to the defendant, constitutes a proper subject of set-off against the administrator in a suit in his representative capacity, not having been raised in any manner in the court below, cannot be considered on appeal.
    
      8. Same; when appellate court cannot relieve. — Even where the issue joined is immaterial, if there was a trial, verdict, and judgment rendered on it. without exception or objection properly raised, this court cannot grant relief on appeal.
    Appeal from City Court of Eufaula.
    Tried before tbe Hon. E. M. Keils.
    This action was brought by the plaintiff, Jesse Locke, as administrator of the estate of M. B. Locke, deceased, on two promissory notes for thirty-five hundred dollars each, dated respectively May 24, 1871, the first payable to plaintiff as .administrator, on the first day of December next after the date thereof, and the other payable by the first day of January next thereafter. The defendants pleaded the general issue, and a set-off by a debt due from the plaintiff to one of the defendants, which was $1,400 in excess of the demand sued for. The court gave judgment for the defendants against the plaintiff, and imposed costs on plaintiff. The judgment of the court below is now assigned as error.
    Arlington & Tompkins, and Watts & Watts, for appellant.
    1. Set-off is a cross-action allowed by statute. — Brazier v. Fortune, 10 Ala. 216, 519; § 2642 Rev. Code. It did not exist at common law, and is the creature of the .•statute. — See Waterman on Set-off, p. 10, § 7; 18 Ala. 767; White v. Governor, 18 Ala. 767. The right of set-off must therefore be limited to the statute.— White v. Governor, ■supra.
    
    2. Section 2643 of Revised Code declares that if the set-<off is found by the jury in excess of the amount of plaintiff’s demand, judgment shall not only be rendered for costs,, but for the excess so found. This clearly applies only where there is a single defendant, or where the joint defendants sued have a joint demand pleaded as a set-off, and the jury have found the plea to be true, and have found an excess due to all the defendants.
    3. Where a suit is brought against several defendants, a debt due by plaintiff to one of them, cannot be set-off unless-the statute authorizes it. — See Waterman on Set-off, p. 280, § 228; ib. p. 282, § 230; Henderson v. Lewis, 9 S. & E. 379; Ross v. Knight, 4 N. H. 236 ; Pitkin v. Pitkin, 8 Conn. 325; Walker v. Leighton, 11 Mass. 140; Wood et al. v. Harris,. Assignee, 5 Blackf. 585; Christian v. Miller, 3 Leigh (Va.) 82; War sen v. Wells, 1 Metcalf, 80.
    JAMES L. Pugh, contra.
    
    1. In JDuramus v. Harrison & Whitman, 26 Alabama, at page 329, this court says: “ A set-off in this State has never been supposed to be, in all respects, like a suit, although it is in the nature of a cross-action.”
    2. In Jones & Co. v. Jones, 12 Ala. 244, this court leaves-it a doubtful question, “ whether, when one of several defendants sets-off a demand due to him alone, he can have judgment against the plaintiff for any balance in his favor.”
    3. In December 9,1861, the legislature settled this question, and the act is found in sections 2642 and 2645 of theEevised Code, which gives such right to any co-maker, whether principal or surety, when sued jointly or alone. Upon what principle of logic or law, reason or justice, is it - that a plaintiff, who joins the principal debtor with his sureties in an action, can deprive the principal debtor of-the right-of protecting his sureties by pleading and proving that the plaintiff owes' him more than the debt sued for, and to get a judgment for the balance? Section 2642 of the Eevised Code clearly means by “ mutual debt, &c., subsisting between the parties,” any debts subsisting between the plaintiff or' plaintiffs and one or more defendants. This section confers the right when defendants are sued jointly, and section 2645 confers the right when defendant alone is sued.
   STONE, J.

The present suit was tried on the pleas of non assumpsit and set-off. The complaint sets forth, as cause of action, two notes payable to plaintiff as administrator of another. The suit is by plaintiff in his representative capacity. The plea of set-off is pleaded by its name alone, and does not show in what form or right the cross-demand; exists. Nor does it show in whose favor it is asserted; whether by all, or only one, or a part of the defendants. There was no demurrer to the plea, and no exceptions reserved on the trial.

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. But it furnishes no reason why such demand should not be a complete answer' to the plaintiff’s right of recovery.—Carson v. Barnes, 1 Ala. 93; Jones v. Jones, 12 Ala. 244; Huddleston v. Askee, at present term; Mitchell v. Burt, 9 Ala. 226; Pritcher v. Patrick, Minor, 321.

Whether, if the set-off claimed in this case was a debt due from plaintiff’s intestate to defendant, or whether if it was a debt due from the administrator individually, it could be pleaded as a set-off in this action, are questions which the-present record no where raises. We are not informed what was the evidence, or what the rulings in the court below. See Harkin v. Levi, 6 Ala. 399; Rapier v. Holland, Minor, 176; Gayle v. Randle, 1 Stew. 529; Crabtree v. Cliatt, 22 Ala. 181; White v. Ward, 22 Ala. 442. But these questions not being-presented in the primary court, can not be considered here. 1 Brick. Dig. 776, § 31.

Even if the issue formed in this cause was immaterial,, if there was a trial, and verdict and judgment rendered upon it without objection to it properly reserved, this court, by any rules known to us, is powerless to grant relief.—Mudge v. Treat, page 1, present volume.

The judgment rendered in the court below, against the-plaintiff, for the certified balance due from him, is an error, which works a reversal of the judgment to that extent. It extends no further. The judgment should have done no more than to discharge the defendants with their costs. A judgment is here rendered, reversing and vacating that part of the judgment, and permitting the residue to stand on a general verdict and judgment for defendants. Let appellees pay the costs of this appeal.—See Jackson v. Shipman, 28 Ala. 488.  