The present statute of set-off materially varies from the former (as found in Clay’s Dig. 338, § 141), in the enlargement of the demands, the subject of set-off, more than in any other respect. The legal title, prior to the Code, was as necessary to support a plea of set-off, as it was to support an action at law. Now, the party interested, having the exclusive equitable right to a contract for the payment of money, may sue thereon, or may plead it as a set-off ; and unliquidated demands, not sounding in damages only, which, when the facts are shown, the law measures accurately by a pecuniary standard, are the subject of a set-off. Holley v. Younge, 27 Ala. 603 ; R. C. § 2642. With these exceptions, the present statute is not variant from the former. In the adoption of the present statute, the legislature is presumed to have known the construction the former statute had *220received, and, so far as it was substantially re-enacted, to have adopted that construction. — Duramus v. Harrison, 26 Ala. 326.
In Pitcher & Remsen v. Patrick’s Adm’r, Minor, 321, it was held, that defendants, jointly sued, were entitled to set off a ■debt due from tbe plaintiff to one of them separately. The decision was followed, and xe-affirmed, in Carson & Moore v. Barnes, 1 Ala. 93; Winston v. Metcalf, 6 Ala. 756; Mitchell v. Burt, 9 Ala. 226; Sledge v. Swift, Murphy & Co., at June term, 1875; Jones v. Jones, 12 Ala. 244. We are not aware that its correctness has ever been questioned. In several of these cases, the test of the sufficiency of a set-off, now so earnestly insisted on by counsel for appellee, was considered. That test is, the right of a defendant to a judgment for the excess of the set-off, over the plaintiff’s demand. In Pitcher & Remsen v. Patrick’s Adm’r, supra, it was said: “ But it has been urged, that our statutes as to set-off require the jury, if they find that the plaintiff’s debt is by the set-off overpaid, to certify how much the plaintiff is indebted, over and above the sum by him demanded, which sum, so certified, shall become a debt of record, etc.; and as the excess, if found, could not be here certified, as a debt due to both defendants, testimony should not go to the jury, upon which they could not find and certify as required by the statute. The defendant, in an action by the assignee of a note, etc., is to have the benefit of all discounts and set-off, possessed or had previous to notice of the assignment. In such action, a debt due from the original payee of the note could unquestionably be pleaded and proved; yet an excess in favor of ■defendant could not, by the finding of the jury, be made a ■debt of record, either against the plaintiff, or against the payee, who was not a party to the action. The provision as to certifying the excess due to defendant was for his benefit; it does not exclude him from the benefit of the set-off, though he may not be able to have the balance certified.” In Jones v. Jones, supra, it was said : “ Whether, where one of several defendants sets off a demand due to him alone, he can have judgment against the plaintiff foiyany balance in his favor, is no test of the admissibility of the set-off.”
A judgment for an excess of a set-off is not involved in the inquiry, whether the demand proposed is the proper subject of set-off. Statutes of set-off do not necessarily embrace provisions authorizing a recovery of the excess of the set-off. When such provisions are introduced, the purpose is not to define the character of the demand which may be set off, or to narrow the rights of the defendant. They are introduced in furtherance of the object of allowing a set-off at law,' — the *221prevention of a multiplicity of suits, and tlie final adjudication of the right in one, instead of two suits. It would be a strange construction of a provision, made for this purpose, that would operate so as to deprive a defendant entirely of the right of set-off, and compel two suits, or, it may be, a-suit at law, and another in equity.
The appellant Huddleston had a valid, subsisting demand against the plaintiff, the appellee, on which he could have maintained an action at law when this suit was commenced. If he had been sued separately, instead of jointly with his co-apellant, Boyd, as he could have been under our statute, the demand due him from the plaintiff would have been, without doubt, a set-off. The plaintiff, by his election to sue them jointly, cannot deprive the defendant of the right.
The error of the Circuit Court is apparent from what has been said; and its judgment is reversed, and the cause remanded.