79 Md. 1 | Md. | 1894
delivered the opinion of the Court.
This action was brought hy Robert Sellman against Nicholas W. Steele, the surviving obligor of James H.
The'first questions we are called upon to consider arise upon the disposition of the pleadings.
The plaintiff was the assignee of a non-negotiable chose in action. He therefore took it subject to all the legal and equitable defences of the debtor to which it was subject in the hands of the assignor, at the time of the assignment. The defendant, therefore, could make the same legal and equitable defences against the plaintiff, as were available to him against Davis at the time of the assignment, and before notice thereof, and to the saihe extent. Code, Art. 8, sec. 3.
This is so well settled that it is unnecessary to cite' cases to sustain it. Gittings vs. Seevers, 24 Md., 376; Harwood, et al. vs. Jones, 10 G. & J., 405; Tims and Wife vs. Shannon, 19 Md., 296.
Our Code confers the right to plead set-off in the broadest terms. “In any suit brought on any judgment, or bond, or other writing sealed by the party, if' the defendant shall have any demand or claim against the plaintiff, upon judgment, bond or other instrument under seal, &c., * * he shall be at liberty to file such demand or claim in bar, or plead the same in discount of the plaintiff’s claim, and judgment for the excess of the one claim, &c.” Code, Art. 75, sec. 12. Thus, liberty is granted to file such demand or claim in bar
The objection that the set-off is bad because the plaintiff’s cause of action was executed by the two Steeles? whereas the bill mentioned in the plea is the act of James Steele only, we think cannot be sustained. The plaintiff’s cause of action is the joint and several obligation of the parties, and it is well settled that “where two or more parties enter into a joint and several bond, it becomes the separate debt of each, and may therefore be set-off by the obligee in an action brought against him by either of the obligors. ” Waterman on Set-off, secs. 231, 232; Fletcher vs. Dyche, 2 Durnford & East, 36; Culver vs. Barney, 14 Wendell, 161; Cate vs. Gray, Hemp, 155; Owen vs. Wilkinson, 5 C. B. (N. S.,) 526.
We are of the opinion therefore there was error in sustaining the demurrer to the first of the defendant’s original pleas. The second of the original pleas though stated to be on equitable grounds is substantially a plea of set-off. The facts therein set forth, if admitted to be true, would constitute a full and sufficient answer to the plaintiff’s claim; the plea therefore ought to have been maintained. The third of these pleas was properly held to be bad. The demurrer to the replication
As to the rulings of the Court below contained in the first and second exceptions, we do not think it is necessary for us to consider. In the view we have expressed, it is quite immaterial whether the suit in Baltimore City Court was pending or not. The rejection of the evidence set out in these exceptions could not affect the defendant’s case.
The prayers of the plaintiff being founded upon the theory that the defendant could not maintain his defence if, at the time of the institution of the suit, or of the filing of the plea, there was a suit pending to recover the claim mentioned in plea, for the reasons above expressed, ought not to have been granted. We think there was also error in rejecting the defendant’s prayer. The judgment will be reversed, and a new trial awarded.
Judgment reversed, and new trial awarded.