20 N.C. 21 | N.C. | 1838
In our opinion the defendant is not entitled to the set off under either plea. The first is, that the notes were endorsed to the defendant before and at the commencement of this suit. This is not true in point of fact. The assignment was on the 8ih of July and the suit we think was commenced on the 8th of May preceding, on which day the writ is dated, and as stated in the case, truly dated and filled up. The suing out the writ from the proper officer, or purchasing it, as it is called sometimes, is so universally deemed the bringing suit, that no exception is recollected by the Court. It is unquestionably so within the statute of limitations, which uses the very words “ that all actions shall be commenced or brought within the time and limitation expressed, and not after.” While the teste of the writ on the one hand is not the commencement of the suit, for the benefit of the plaintiff; so on the other, the service of it, or its delivery to the sheriff, or any such thing is not requisite to the commencement of the suit for the benefit of the defendant; but
The second plea, presents a question, which is not so free of doubt. The plea is not actio non; but that the plaintiff ought not further to prosecute his suit, because since the commencement of this suit the notes made by the plaintiff were endorsed to the defendant. None .of us remember such a plea in practice; nor have we been referred to any such precedent, or an adjudication giving colour for it. The Council for the plaintiff relied entirely on a passage in a modern treatise, Babington on set off, 82; and insisted on the reasonableness and propriety of the plea. That author does seem to suppose, that a defendant may avail himself of a set-off obtained after action brought, by plea in bar to the further prosecutiou of the suit. But he cites no authority for the position. He assumes, that such a demand is a legal set-off’; and if that.be so, the author infers, that it must be pleaded in this form, Because it had been decided in the cases to which he refers, that it could not be by way of actio non generally, that is to say in reference to the commencement of the suit, nor in the more limited form, “that the plaintiff before and at the time of the plea pleaded was indebted.” That consequence is logical, if the proposition assumed be true; but otherwise not. It does not follow that it can be pleaded in this way, because it cannot be pleaded in either of the others; for it may not be a set-off within the statute and- therefore is not pleadible in any form. Our
It was formerly held on demurrer in the case of Reynolds v. Beerling, stated in a note, 3. T. R 188 that the plea of a judgment, recovered by the defendant against the plaintiff after suit, and before plea, was good. It does not appear certainly, nor can it be collected from observations on it in subsequent cases, what was the form of the plea. There is reason, however to say, that it was actio non; because in no other case is there an attempt to support the decision upon the ground that the plea was in bar of the 'further prosecution of the suit. The decision itself professes to be founded on the authority of Sullivan v. Montague Dong. 108, which established as a general principle, that actio non goes to the time of the plea. The inference is, that under a plea actio non it was held to be sufficient if the demand of the defendant existed at the plea pleaded. As an authority to that point, it is precisely opposed by two subsequent cases. In Evans v. Prosser, 3 T. Rep. 186. the defendant had a set-off, which in fact subsisted before action brought, and so appeared in the plea, but he pleaded it as one “ before and at the time of plea pleaded.” Upon demurrer it was adjudged against the defendant though he was afterwards allowed to amend by stating the set-off according to the truth, as one “ before and at the commencement of the suit.” Before delivering the opinion, time was taken to look into the cases; and Mr. Justice Buller, speaking for the Court, said that Reynolds v. Beerling could not be supported in this pojnt. In Hanky v. Smith, 3 T. Rep. 507, Lord Kenyon said, if the bill had come to the defendant’s hands ex post facto, as after action brought, there would have been no mutual credit, and consequently there could be no set-off.
The observation is obvious upon those cases that there is not the slightest intimation, that the plea of set-off may be pleaded in bar to the further prosecution of the suit; and if there had been an idea of that sort, it is difficult to suppose it would have been overlooked, especially as it might have sustained Reynolds v. Beerling, and excused the Court in
The statute was made to prevent multiplicity of suits. That is the object of it. As the means by which that end is to be attained, it enacts that where there are mutual debts subsisting between the plaintiff and the defendant, one debt may be set against the other.” The intention was not merely to give the defendant the benefit of .his debt in the action brought against him, without putting him to the delay, and expense of a cross action. If it had been, then he ought to be permitted to plead a set-off acquired at any time after plea pleaded, by way of plea since the last continuance, as he would plead a payment made pending the suit. But this has never been done ; and the plaintiffs’ counsel admits that a set-off accruing after plea cannot be pleaded puis dar-rein continuance. We believe that is true ; and it seems to furnish a strong argument against this plea ; for it is in the nature of a plea since the last continuance. Why may not a plea of that sort be put in'( Because no- injustice is done to the defendant by denying him the plea, since he does not lose his debt thereby, but may recover it by action; and because the statute did not mean that the plaintiffs action should be barred in any case in which it was at first properly brought. This shews, as was just said, that the scope of the act is not merely to dispense with an action on the part of the defendant. What then is it ? The great purpose was to effect a liquidation of mutual debts, without resorting to suits, not only by each, but by either party. The statute looks at the balance as the debt; and therefore if one of two persons, having mutual dealings will sue the other, instead of exchanging discharges, the party sued is allowed to set-off his debt against the other as a bar to the action. In other words the plaintiff is made to pay the costs as a penalty for his wan. ton and obstinate litigation. But this is applicable only
Upon the whole, the Court is of opinion that only mutual debts subsisting at the time of action brought as debts to and from the plaintiff and defendant, can be set-off. Whether a debt from the plaintiff to the defendant subsisting at the time when the writ is sued out, but becoming payable afterwards. and before plea pleaded, may be availed of as a set-off by a plea to the further prosecution of the suit, is a question not necessarily involved in this case, and therefore not decided . ^ •by it. , '
Pjsr Curiam. Judgment affirmed, °