Summary
In Mizell v. Moore, 29 N.C. 255, this Court held that where the defendant pleaded a set off of certain bonds, which he afterwards reduced to judgment, the plea was defeated because the set off did not exist in the form in which it was pleaded, nor could the judgment be made available in its stead, for the reason that it did not meet the specifications of the plea, and moreover, did not exist when the plea was (336) put in.
Summary of this case from Dawson v. HartsfieldOpinion
(June Term, 1847.)
1. The plaintiff commenced his action of assumpsit on 3 July, 1846. On the 13th, when the court to which the action was returnable sat, the defendant pleaded as set-offs certain bonds of the plaintiff's due 3 July. On these bonds the defendant had sued out warrants against the plaintiff on 7 July, and recovered judgments on 10 July, 1846. Held, that these bonds could not be introduced as set-offs, because they were merged in judgments before the plea pleaded.
2. A set-off must not only be due at the commencement of the suit, but must continue to be due in the same form when pleaded.
APPEAL from MARTIN Spring Term, 1847; Bailey, J.
Assumpsit for goods sold, and was commenced on 3 July, 1846. The defendant pleaded, amongst other things, nonassumpsit, and a (256) set-off due to him on three several sealed notes of the plaintiff. Upon the trial the plaintiff proved his demand, and the defendant produced the three bonds, as described in his plea, which were due before and on 3 July, 1846. They appeared to have been canceled by having the word "Judgment" written across the face of them, and it was then established that on 7 July, 1846, the defendant sued out three warrants against the plaintiff on the bonds; and on the 10th of that month obtained judgments thereon before a justice of the peace; and that the defendant therein (the present plaintiff) then stayed them by giving security according to the statute, which stay expired on 10 January, 1847. The trial of this suit was in February, 1847, and at that time no execution had issued on either of the three judgments, and they remained unpaid.
Upon this evidence the plaintiff insisted that the defendant was not entitled to any set-off in this action. But the court held otherwise, and the jury found for the plaintiff on the first issue, and assessed his damages at $77.51 for principal money and interest; and upon the other plea they found for the defendant "a set-off to the amount of $82.69, that is to say, on one bond upon which a judgment has been obtained, with the interest and costs, to the amount of $42.02, and on one other bond upon which a judgment has been obtained," etc. Upon the verdict, there was judgment for the defendant for his costs, and the plaintiff appealed.
Rodman for plaintiff.
No counsel for defendant.
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 writing obligatory at the commencement of the suit was and still is in full force and effect, not released, paid off, satisfied, canceled, or otherwise made void." 3 Chitty P. C., 931, 936.
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.