31 N.J.L. 170 | N.J. | 1865
The opinion of the court was delivered by
To an action of debt, brought on a judgment rendered in the District Court of the United States for the territory of Iowa, in the year 1840, the defendant pleaded payment and gave notice of a set-off for a book account which accrued prior to the year 1839, when both parties resided in Iowa. This claim did not appear to have been set off against the plaintiff’s demand, for which his judgment was obtained. The defendant, who went from this state, loft Iowa in 1839 and returned about the time the judgment was obtained against him, and has resided here ever since. The circuit judge having ruled that the set-off claimed was barred by our statute of limitations, the only question certified to this court for an advisory opinion is, was this ruling correct ?
The. counsel who argued the case in this court assumed that the statute of limitations applies as well to a demand attempted to be set off as to one upon which an action is brought, and I think rightly. The eleventh section of our statute to enable mutual dealers to discount, Nix. Dig. 790,
The English statutes authorize a set-off where there are mutual dealings, and this expression has always been held to confine the set-off to a case where the dealing for which the defendant sets up a claim, is one for which he could maintain an action not barred by the statute of limitations. Remington v. Stevens, 2 Strange 1271; Buller’s N. P. 180; Chapple v. Durston, 1 Cromp. & Jer. 1; Walker v. Clements, 15 Adol. & El. 1046. And the same principle has been
In the case of Smith v. Ruecastle, 2 Halst. 357, decided in 1800 but not reported until 1824, Chief Justice Kinsey appears to have put the decision, which was clearly right, on the ground stated by the counsel, that the defendant’s set-off, which was for a book account more than six years old, had been acknowledged by the plaintiff within six years, on the principle that the statute made the set- off a payment; and also, that as there were demands on both sides, although wholly disconnected, the statute did not apply. This ruling has not been adopted by the courts in practice, and was in effect overruled by the cases of Belles v. Belles, 7 Halst. 339 ; Gulick v. Turnpike Co., 2 Green 545 ; and Hibler v. Johnston, 3 Harr. 266.
That the defendant’s claim, if he had brought his action for it, would have been- barred by the first section of the statute of limitations, is not disputed. The case, therefore, turns on the construction of the eighth section of that statute, Nix. Dig. 470, § 14.
In all these cases the plaintiff was not only a non-resident when the action accrued, but he so remained during six years afterwards and at the commencement of the action; while in this case the defendant who, so far as his set-off is concerned,
This reason does not apply to this case, and in my opinion it will be the safest and best course to adhere to the plain language of the statute in all cases not falling within the precise ruling heretofore adopted.
I am therefore of opinion it should be certified to the Circuit Court that the set-off claimed by the defendant was not barred by the statute of limitations.
Van Dyke, J., concurred.
Rev., p. 595, § 8.