Mizell v. . Moore, 29 N.C. 255

Mizell v. . Moore

29 N.C. 255 | N.C. | 1847

The judgment must be reversed. The defendant was not entitled to set-off his demands in this action in any form, neither as judgments nor bonds. Not the former, because they were rendered after the commencement of this suit, and were not due even when the plea was put in, having been stayed. Indeed, the plea is of the (257) bonds and not of the judgments; and yet the jury allowed the defendant his costs recovered in those judgments as a part of the set-off here. But the bonds themselves were not good set-offs; for a set-off must not only be due at the commencement of the suit, Haughton v. Leary,20 N.C. 14, but it is plain that it must continue to be due in the same form when pleaded. The statute meant, indeed, to do away with the necessity of a multiplicity of suits. But it does not oblige one who is sued to set-off his counter demand; and if he chooses to sue on it, and thereby produce the mischief the law designed to correct, he renounces the privilege of the statute, and cannot afterwards claim it so as to defeat his creditor's action and throw the cost on him. The defendant can no more set-off these bonds, after merging them into judgments between the suit brought and plea pleaded, than he could if at that time he had received payment of them. This the very form of the defendant's plea shows. Taken from the precedent, it alleges "that the plaintiff before and at the time of the commencement of this suit, etc., was and still is indebted to the defendant in, etc., upon and by virtue of a certain writing obligatory sealed, etc., and now shown to the court, etc., which said writingobligatory at the commencement of the suit was and still is in full forceand effect, not released, paid off, satisfied, canceled, or otherwise madevoid." 3 Chitty P. C., 931, 936. *184

The counsel for the defendant, in order to show that the change in the face of the evidences of the debt does not defeat the set-off, has drawn our attention to that class of cases in which the court, where two persons have cross judgments, has satisfaction acknowledged or entered for the amount of the recovery and costs in the other. But that is a distinct jurisdiction, and not founded on the statute at all. It is a discretionary power, exercised by the court over its suitors for the purposes of (258) promoting justice and preventing the loss of costs in cases of insolvency or the like. But the attempt here is not to set-off one set of costs, or judgment against the other, but to compel the present plaintiff to pay the costs of his own action, as well as those of the defendants, by using the set-off as a bar to the plaintiff under the statute.

PER CURIAM. Venire de novo.

Cited: Brittain v. Quiet, 54 N.C. 330; Ramsour v. Thompson, 65 N.C. 630.