10 Watts 255 | Pa. | 1840
The opinion of the court was delivered by
The nature and application' of set-off seem to have been misapprehended in the court below. Set-off is only applicable when the parties to the action have mutual and independent debts or claims, arising out of separate and distinct contracts against each other; which, therefore, could not be settled by set-off at common law, without the consent of both parties; but, in order to effect this without such consent, where a suit was brought by one against the other, and thereby prevent circuity of action, the defendant is now authorized by statute to liquidate, pr satisfy the debt or claim of the plaintiff, by setting up his own claim against that of the plaintiff, and obtaining a credit for it, and by this means to satisfy the claim of the plaintiff; 1 Rawle 293; Ballentine on Set-off 1. If the defendant, therefore, claims the benefit of a set-off, he impliedly admits the existence of the plaintiff's claim, but desires that it may be extinguished by a set-off of the debt coming to himself from the plaintiff, against it. But if he asserts that he has actually paid the debt claimed by the plaintiff, then it is obvious, that instead of admitting the plaintiff's claim to be still in being, as in case of his claiming merely to have a set-off allowed him, he denies that the plaintiff has any claim at all against him. Seeing, then, that the defendant below did not set up or pretend to have any debt or claim against the plaintiff, no question of set-off could arise in the case. The defendant there merely claimed that the instalment due on the bond, at the time of bringing the action, had been paid, in part, before, and the residue after the commencement of it; and by the endorsements on the bond, which were not controverted, but admitted, he showed that he had actually paid, at different times, in discharge of •the condition of the bond, an amount of money much more than sufficient to satisfy the two instalments for which the action was brought. But the plaintiff below contended, that the • payments, though made on the bond, ought to be first appropriated to the payment of the instalments; which became payable in January of the
Judgment reversed, and a venire facias de novo awarded.