Harwell v. Steel

17 Ala. 372 | Ala. | 1850

CHILTON, J.

1. The statute of limitations may be pleaded to a set-off. — Remington v. Stephens, 2 Str. 1271; Blanchard on Lim. 166; 1 Law Lib. p. 86; Shaw v. Yarbrough, 3 Ala. 588.

2. The statute allows the defendant the benefit of all sets-off possessed, &c. by him before notice of the assignment. — Clay’s Dig. 381, § 6. This right of set-off once acquired is not defeated by the subsequent bankruptcy of Johnson, the maker of the note, any more than by his death. The bona fide holder of a set-off acquired before the bankruptcy can avail himself of the set-off as effectually against the endorsee of the bankrupt before his discharge as he could against the assignee in bankruptcy. If the assignee had sued, the set-off would have been good; for the 5th section of the bankrupt act provides, that “ where there are mutual debts or mutual credits between the parties, the balance only shall be deemed to be the true debt or claim between them, and the residue shall be deemed to be adjusted by the set-off.” The assignee occupies the place of the bankrupt, and if the set-off would be available against him, it is equally so as against the endorsee; for the statute says the defendant is to be allowed the set-off in the same manner as if he had, been sued by the yayee or obligee, — Clay’s Dig. 3S2, ^>6. There was therefore no error in holding the second replication bad.

3. But the court erred in overruling the demurrer to the rejoinder of the defendant to the plaintiff’s first replication to the plea of set-off, thereby holding that the bankruptcy of Johnson, the maker of the note, pleaded as a set-off, suspended the statute of limitation. The general rule is too well established to be now debated, that when the statute once begins to run it continues notwithstanding an intervening disability to sue.— Greer v. Jones, 1 Stew. 254; Johnson, adm’r, v. Wren, 3 ib. 172; Lowes’ Adm’r, v. Jones, 15 Ala. 545. Neither will the court imply a saving or an exception restrictive of its operation and which is not found in the statute. — Howell v. Hair, 15 Ala. 194. In Sacia v. Degraff, 1 Cow. Rep. 356, it was insisted that the discharge of the defendant under the insolvent act, the effect of which was to lock up the courts as to any suit against him, must suspend the statute for the time no suit could be brought, but the court held otherwise and such seems to he the settled law. If it is a bad one, that is not the fault of the court, but the legislature have not deemed it such, and it is our province to enforce it.

Judgment reversed and cause remanded.