thority. Such persons are trustees de son tort, as persons who assume to deal with a deceased person's estate without authority are administrators de son tort." A number of authorities are cited in note "a" to this section, but in most of them the bill was filed by the person whose legal title was violated, or from whose possession the property was taken, or by some one holding in privity with such person, such as an heir. We have been unable to find a case where a party with neither a legal nor equitable claim or title in the property could have a bill to establish and enforce a trust for his benefit against one obtaining possession of the property from another through fraud. There are, however, cases to be found where the courts have held that where a person, through fraud and deceit, obtains possession of property under a promise that it will be held for the benefit of another, the law raises a trust for the benefit of such other person, and which he may enforce. The most common illustration of this principle is found in that class of cases where a party has procured a will or deed to be made in his favor under a fraudulent promise that the property would be received and applied to the benefit of a third person. It is thus stated in Perry, Trusts, § 181: If a person by his promises, or by any fraudulent conduct, with a view to his own profit, prevents a deed or will from being made in favor of a third person, and the property intended for such third person afterwards comes to him who fraudulently prevented the execution of the will or deed, he will be held to be a trustee for the person defrauded, to the extent of the interest intended for him." In Pom. Eq. Jur. § 1053, the principle is thus stated: "In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealment, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means, or under any other similar circumstances which render it unconscionable for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired, in favor of the one who is truly and equitably entitled to the same, although he may never, perhaps, have had any legal estate therein." The difficulty in the application of this principle in the case before us rests in the fact that in the first place, under the alleged fraud, the legal title to the property never passed out of Pinson Bros. & Co., and, in the second place, it is not shown that the complainant is equitably entitled to the same. But on the contrary, the facts as stated show that Pinson Bros. & Co. are the persons legally and equitably entitled to the property, and therefore to hold the wrongdoer, as a trustee in invitum, to an accounting. It is not so much a question here of a trust ex maleficio, but who are the beneficiaries, and entitled to enforce it? The alleged fraud in this case, being that Savage represented himself as having been appointed receiver, repels the suggestion of any promise on the part of Savage that he would hold the property for the benefit of the complainant. The office and duty of a receiver are to preserve the property coming into his custody as such, to be disposed of by the decree of the court of which he is an officer. In the foregoing discussion we have treated the case upon the theory of the complainant's being a creditor of the firm of Pinson Bros. & Co., whose property is alleged to have been taken by the wrongdoer. Coming to the proof in the case, there is a fatal objection to any right of recovery by the complainant under the bill. The theory of the bill is based upon the complainant's right to recover as a judgment creditor of the firm of Pinson Bros. & Co., and the judgments offered in evidence are judgments, not against Pinson Bros. & Co., but against the persons who compose the firm, as individuals, together with two other persons, not members of the firm. We are therefore of the opinion that the court below erred in the decree rendered in favor of the complainant, and the decree must be reversed, and a decree will be here rendered dismissing complainant's bill. (127 Ala. 401) SAVAGE et al. v. JOHNSON et al. (Supreme Court of Alabama. June 30, 1899.) ESTOPPEL-BILL OF REVIEW. 1. A bill was filed, seeking to hold certain defendants therein s trustees maleficio for creditors of an insolvent partnership; and a decree was rendered for complainant, and for an accounting. Thereafter, on appeal from a decree rendered at the coming in of the account, the defendants held as trustees contended that the first decree was not a final one, and that hence assignments of error as to the same should be considered, though the appeal was taken more than 12 months after the rendition of the first decree. Held, that thereafter, on a bill of review by those held as trustees, to review the first decree, they were bound by their contention on appeal from the decree, and could not be heard to say that it was final. 2. A bill of review lies only after a final de cree. Appeal from city court of Anniston; James W. Lopsley, Judge. Bill of review by James H. Savage and others against Thomas L. Johnson and others. From a decree dismissing the bill, complainants appeal. Affirmed. It was averred in the present bill that Thomas L. Johnson, as a creditor of Pinson Bros. & Co., had filed the original bill for the purpose of having James H. Savage and D. C. Savage declared trustees ex maleficio, for the benefit of the complainant and other creditors of Pinson Bros. & Co., as to a stock of goods and other property owned by Pinson Bros. & Co., which had been turned over to There was also a prayer for general relief. SHARPE, J. The decree sought to be reviewed under this bill was heretofore examined by this court upon an appeal taken by these appellants from the subsequent final decree rendered in the same cause. Savage v. Johnson (at present term) 28 South. 547. Upon their application for a rehearing in that appeal it was contended by these appellants that the decree described in this bill was not final in its character, and that therefore they had the right to assign it for error, and have it reversed upon that appeal, which was tak en only from the last decree. Such right was urged upon the true ground that there had been no ascertainment, either by the pleadings or proof, or by the terms of the decree, of any sum owing by Pinson Bros. to Johnson; that inquiry having been only referred to the register. Since complainants' liability depended upon the ascertainment of such indebtedness, and remained to be thereafter determined, the decree here in question was not final. This position assumed and urged by the appellants in the other appeal must prevail against them here, and it follows that this bill cannot be maintained. A bill of review lies only after a final decree. Story, Eq. Pl. § 408a. The decree appealed from will be affirmed at appellants' costs. said James H. Savage and D. C. Savage. | liability on account of said decree aforesaid." The said bill filed by Johnson, and the decree in said cause, were attached to the present bill of review as an exhibit. The decree so rendered in said cause was as follows: "This cause, coming on to be heard at the present term, was submitted for decree on the pleadings and proof as noted by the clerk; and on consideration it is ordered, adjudged, and decreed that complainant is entitled to the relief prayed for in his bill of complaint. It is further ordered, adjudged, and decreed that the defendants James H. Savage and D. C. Savage are trustees ex maleficio of the stock of goods, chattels, and choses in action belonging to the firm of Pinson Bros. & Co., which went into their hands, or either of them, and are held hereby to account to complainant for the value of the same at the time said defendants, or either of them, went into possession of the same. It is further ordered, adjudged, and decreed that the stating of the account be, and the same is hereby, referred to the clerk of this court." Then follow the terms as to stating the account, etc. After referring to said decree in the original suit, the present bill of review then contained the following averments: "That orators are advised by counsel, and upon such advice represent and state, that there is error apparent in said final decree rendered in said cause on the 6th day of June, 1895, in this: That the facts stated in the original and amended bill, and summarized in said decree, and upon which said decree is based, granting complainant relief, do not constitute orators trustees ex maleficio, or trustees in any sense for complainant, who, it appears, was a judgment creditor of said Pinson Bros. & Co., the owners of the stock of goods alleged to have been received by orators; that, as orators are advised by counsel, and upon such advice state, said complainant, Thomas L. Johnson, had no interest in the stock of goods alleged to have been received by respondents, but only a personal demand against Pinson Bros. & Co., which did not constitute a lien upon the goods, and was not a jus in re or a jus ad rem, so far as said goods were concerned; that orators are not, at law or in equity, accountable to said complainant for said goods or the proceeds thereof, nor do any facts appear of record which would authorize said complainant, Thos. L. Johnson, as a judgment creditor, to maintain said bill and obtain relief against orators." The prayer of the present bill was as follows: "That further proceedings in said original cause for the execution of said final decree be stayed and restrained by the order of this court until this bill of review is heard and determined; and, upon final hearing, orator prays that said final decree be reviewed and reversed in so far as orator is held a trustee ex maleficio, or a trustee in any sense for complainant, and held liable to account for the proceeds of said stock of goods aforesaid, and that orator may be relieved and discharged from all (127 Ala. 127) BURNS v. REEVES. 1. The complaint in an action to recover the re was given after the partial payments were made. Held, that the complaint was sufficient, under Code 1896, § 3285, providing that no objection to pleadings can be allowed, for defect of form, if facts are so presented that a material issue in law or fact can be taken by the - adverse party thereon. 2. Under Code 1896, § 3728, providing that "mutual debts, liquidated or unliquidated demands not sounding in damages merely, subsisting between the parties at the commencement of the suit, may be set off one against the other by defendant or his personal representative," a demand on a mortgage note inay be set off in an action by the mortgagor to recover the statutory penalty for the mortgagee's failure to enter on the margin of the mortgage record partial payments made; the demand sned for, though arising out of tort, being liquidated, and not sounding in damages merely. Dowdell, J., dissenting. Appeal from city court of Gadsden; John H. Disque, Judge. Action by Jake Reeves against Aquilla Burns. There was a judgment for plaintiff, and defendant appeals. Reversed. This action was brought by the appellee, Jake Reeves, against the appellant, Aquilla Burns, to recover the statutory penalty of $200 for the defendant's failure, within 30 days after having been requested in writing, to enter on the margin of the record of mortgages the dates and amounts of partial payments made on a certain mortgage executed by plaintiff to defendant. The complaint, as amended, was in words and figures as follows: "The plaintiff claims of the defendant two hundred dollars due from said defendant to said plaintiff by reason of a failure on the part of defendant, within thirty days after being requested in writing, on the 23d day of February, 1899, by said plaintiff to said defendant, to enter on the margin of the record of the mortgage hereinafter named the dates and amounts of the partial payments made on a certain mortgage executed by said plaintiff to said defendant on the 4th day of February, 1896, for the sum of two hundred and thirteen and 25/100 dollars, and due on the 1st day of November after the date thereof (except $3.40 and $31.02 entered by said defendant February 23, 1899), and recorded in Book 43, pages 454 and 455, of Mortgages, in the office of the judge of probate of Etowah county, Alabama, conveying to said defendant the following described property, to wit: The N. W. 4 of S. E. 4, Sec. 16, T. 10, R. 6 East; 2 N. W. 4 of S. W. 4, running from the northwest corner to the southeast corner; also, a part of the N. E. 4 of S. W. 4. Sec. 16, T. 10, R. 6, lying and being in Etowah county, Ala.; also the half of the entire corn crop of James Campbell, and the half of the entire cotton crop on said described land; also, one mouse-colored mule of said plaintiff,-to secure the payment of said mortgage of said defendant, he being then and there the mortgagee in said mortgage. The said plaintiff avers that said defendant received other partial payments in said mortgage, other than the two partial payments mentioned in the above Dortch & Martin, for appellant. N. G. TYSON, J. We do not understand that a complaint should set out the evidential facts upon which a plaintiff relies for a recovery. All that is required is that its averments shall be sufficiently intelligible as to matters put in issue, so that a material issue can be taken upon them. Code, § 3285. The court properly overruled the demurrer to the complaint as amended.. The statute not prescribing the remedy to be pursued for the recovery of the penalty sued for, the common-law principle applies, that when a statute gives a penalty, and provides no remedy for its recovery, an action of debt is the appropriate remedy, because the sum demanded is certain and fixed. Code, 1065; Blackburn v. Baker, 7 Port. (Ala.) 284; Russell v. Irby, 13 Ala. 131; 1 Brick. Dig. p. 526, § 19. This action, though in form an action of debt, is in fact on a tort, a failure on request in writing of the mortgagor to enter on the margin of the record of the mortgage the date and amount of partial payments. Chaffee v. U. S., 18 Wall. 516, 21 L. Ed. 908. In McCoun v. Railroad Co., 50 N. Y. 176, this language is used: "The statute liability wants all the elements of a contract,-consideration and mutuality, as well as the assent of the party." This principle was distinctly recognized by this court in the case of Higdon v. Kennemer, 24 South. 439. It is believed that no case can be found in Alabama which holds that a set-off can be pleaded to a tort action, except the case of Hamilton v. Griffin, 26 South. 243. The plaintiff's action here being in fact for a tort, the defendant's plea of set-off was not available as a defense. Russell v. Russell, 62 Ala. 48; Whitworth v. Thomas, 83 Ala. 308, 3 South. 781; Lowery v. Rowland, 104 Ala. 420, 16 South. 88; Marlowe v. Rogers, 102 Ala. 510, 14 South. 790, and authorities therein cited; Walker v. McCoy, 34 Ala. 659; Morehouse v. Bank, 30 Hun, 628; Bank v. Karmany, 98 Pa. St. 65; Wat. Set-Off, pp. 159, 165, 169. The case of Rosser v. Bunn, 66 Ala. 89, is relied upon by appellant to support his plea of set-off. That was an action on an injunction bond, to which pleas of set-off were interposed. These pleas set off an indebtedness to one of the defendants by the plaintiffs for willfully and knowingly entering upon the lands, and without the consent of the said defendant cutting down and carrying away certain trees therein named, the penalty for which was prescribed by the statute. The only ground of demurrer interposed to them was that the claim proposed to be set off against plaintiffs' demand sounds in damages merely. The opinion treats only of the question raised by the demurrer, holding that they were not subject to it. Doubtless, if a demurrer had been interposed that the subject-matter of the pleas was not proper matters of set-off, the court would have held them bad. An examination of the opinion in connection with the subjectmatter under review discloses that the court did not hold that the subject-matter of the pleas was a proper matter of set-off. The cases of Holley v. Younge, 27 Ala. 203; Gibson v. Marquis, 29 Ala. 668; Wood v. Fowler, 37 Ala. 55; Nelms v. Prewitt, Id. 389; Lang v. Waters' Adm'r, 47 Ala. 624; Eads v. Murphy, 52 Ala. 520; Sledge v. Swift, 53 Ala. 110,-are not opposed to our views. In all of them, except Lang v. Waters' Adm'r and Sledge v. Swift, the pleas involved matters of recoupment. In Eads v. Murphy, supra, Brickell, C. J., after reviewing all the cases, says this: "The rule deducible from these authorities is that whenever the vendee can maintain a cross action at law, because of matters arising out of the contract of purchase, or because of the vendor's breach of the obligations of the contract, and the damages recov erable are fixed by a legal standard, such damages may be insisted on as a set-off to an action for the purchase money." Waterman (page 564), on this point, says: "Although recoupment is only available where both demands spring from one transaction, yet opposing claims, in order to be adjusted in this way in one action, need not be of the same character. Therefore a claim originating in contract may be set up against one founded in tort, if the claims arise out of the same subject-matter, and are susceptible of judgment in the same action." The case of Lang v. Waters' Adm'r simply involves the sufficiency of the plea of set-off as to form and substance. In the case of Sledge v. Swift, supra, the pleas simply set up a breach of the contract out of which plaintiffs' cause of action arose, and involved matters of recoupment. It would be an anomaly in jurisprudence to hold that set-off may be maintained against the recovery of a penalty, thereby defeating the very policy of the statute imposing the penalty,-punishment for a wrong done. The case of Hamilton v. Griffin on this point is overruled. The court committed no error in sustaining the demurrer to the defendant's plea of set-off. Affirmed. MCCLELLAN, C. J., concurs in the foregoing opinion. (June 27, 1900.) DOWDELL, J. As to the plea of set-off, I cannot agree to the conclusion reached by the majority of the court. It seems to me, from the opinion in the case, that they have fallen into error, in supposing that a demand or claim arising out of a tort may not be the subject of set-off. A set-off, which is in the nature of a cross action, was unknown to the common law. It is the creation of the statute, and is regulated and governed by the statute. Our statute on the subject of set-off (Code 1896, § 3728) reads as follows: "Mutual debts, liquidated or unliquidated demands not sounding in damages merely, subsisting between the parties at the commencement of the suit, may be set off one against the other by the defendant or his personal representative, whether the legal title be in the defendant or not; and such set off, if found for the defendant, extinguishes, either in whole or in part, as the case may be, the plaintiff's demand; but the wages or hire of any head of a family in this state, not having property liable to levy and sale under execution, cannot be defeated or abated by any set off of a money demand acquired by the person contracting to pay such wages by assignment or transfer, unless the parties otherwise agree in writing." This statute received a construction by this court, as to the meaning of the language "mutual debts, liquidated or unliquidated demands not sounding in damages merely," in the case of Rosser v. Bunn, 66 Ala. 89, where it was said: "It will be observed that demands may be set off, one against the other, to the same extent that debts may be, with the single exception that such demand, if it sound in damages merely, cannot be the subject of a set-off. 'Demand,' in this section, must mean more than the word 'debt.' Otherwise, its employment was mere tautology, as the word 'debt' had been employed, and would have covered the entire ground. ""Demand" is a claim; a legal obligation; a word of art of an extent greater in its significance than any other word except "claim." Bouv. Dict. 'A thing or amount claimed to be due.' Webst. Dict. It is broad enough in its signification to take in all claims demandable or solvable in money." I do not think the language of the statute can be construed to mean that only debts can be set off against debts, and liquidated or unliquidated demands not sounding in damages merely, against like demands. Certainly it has never received such a construction by this court, in any case that I have been able to find. But, on the contrary, there are a number of cases where a liquidated or unliquidated demand not sounding in damages merely, without reference to whether arising from a tort or contract, has been held good as a setoff against the plaintiff's claim, where his (the plaintiff's) action was in contract. Holley v. Younge, 27 Ala. 203; Gibson v. Marquis, 29 Ala. 668; Wood v. Fowler, 37 Ala. 55; Nelms v. Prewitt, Id. 389; Lang v. Waters' Adm'r, 47 Ala. 624; Eads v. Murphy, 52 Ala. 520; Sledge v. Swift, 53 Ala, 110; Rosser v. Bunn, supra. Under the language of the statute, that such debts or demands as are therein designated "may be set off one against the other by the defendant or his personal representative, whether the legal title be in the defendant or not," it is immaterial whether the plaintiff's action be for a debt, and the defendant's plea of setoff sets up a liquidated or unliquidated demand not sounding in damages merely, or that the plaintiff's action be for a liquidated or unliquidated demand not sounding in damages merely, and the defendant's plea sets up a debt claimed against the plaintiff. If the set-off pleaded be good in the former, then, by force of the language employed in the statute, it must be good in the latter. In the case of Morehouse v. Bank, 30 Hun, 628, cited in the opinion of Justice TYSON, it is said by Dwight, J., rendering the opinion: "I am not aware that the other question, namely, of offset, has been directly passed upon in an action for the penalties when the attempt has been to offset the amount due on the notes, but it clearly must be decided adversely to the defense. In the case of Bank v. Lewis, 81 N. Y. 15, it was held, following Barnet v. Bank, 98 U. S. 555, 25 L. Ed. 212, that a cause of action for the penalties in question could not be offset in an action for the amount due on the notes; and it would seem, on principle, that the rule must work both ways." The italics are mine. If what I have italicized in the foregoing quotation be a sound proposition, then it is equally a sound principle that, if the offset be good in the one instance, it would be also good in the other. I will have occasion to refer to the decision in the abovecited case, as to set-off, further on in this opinion. In the case of Rosser v. Bunn, 66 Ala. 89, the suit was on an injunction bond, and the second plea of set-off was based upon a demand by the defendant against the plaintiffs for a penalty given by the statute for knowingly and willfully cutting trees on the defendant's land. This court held the plea good. This decision, without reference to the statute, would seem to be in conflict with what was said in Morehouse v. Bank, supra, to have been held "in Bank v. Lewis, 81 N. Y. 15, following Barnet v. Bank, 98 U. S. 555, 25 L. Ed. 212," but our statute is different from the statutes underlying the decisions in the above-cited cases. The New York statute of set-off,-as termed in that state, "counterclaim,"-of force at the date of the New York cases cited above, reads as follows: "Counterclaim Defined. The counterclaim, specified in the last section, must tend in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: (1) A cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. (2) In an action on contract, any other cause of action on contract, existing at the commencement of the action." Section 501, 4 Rev. St. N. Y. The difference between the New York statute and ours is obvious, and therefore the decisions of the courts of that state based on a statute so dissimilar to ours cannot be regarded as of much weight as authority in determining what shall constitute a good set-off under our statute. In Barnet v. Bank, 98 U. S. 555, 25 L. Ed. 212, cited in Morehouse v. Bank, the decision is based upon the construction of an act of congress-the national currency act of congress of June 3, 1864 (13 Stat. 99, § 30)-which gives a penalty for taking a greater rate of interest than that allowed by the act, and also prescribes the remedy. The decision against the set-off or counterclaim in that case is rested upon the proposition, as stated in the opinion, on page 558, 98 U. S., and page 212, 25 L. Ed., that "where a statute creates a new right or offense, and provides a specific remedy or punishment, they alone apply. Such provisions are exclusive." The statute in question in that case provided for the recovery of the penalty by an action in debt. The |