#### HAUGHTON & BOOTH *v.*THOMAS H. LEARY.

June, 1838.

The time of the commencement of a suit, upon a plea of .set-off *before and at tile commencement of the suit,*is the time when the writ was sued out from the proper officer, or filled up by the plaintiff’s attorney," and not when it is delivered to the sheriff.

The only proper plea of a set-offis of one due *before and at the time of the commencement of the suit,*because only mutual debts subsisting at (;he time of action brought, as debts to and from the plaintiff'and defendant, can be set-off Hence a plea of set-off in bar to the further prosecution of the suit is not sustainable.

This was an action of Assumpsit to which the defendant pleaded a *set off,*1st *before and at the commencement of the suit,*and 2ndly *in bar of the fitrther prosecution of the suit..*

On the trial at. Chowan on the last circuit, before his Honor Judge Settle, the defendant admitted that he was indebted to the plaintiffs in the sum of $>310,63 unless he was entitled to a set off upon the following facts. The plaintiffs were indebted to one William Bullock and one- Thomas Gregory by negotiable notes, before the. commencement of this suit in a .larger sum than the amount of the plaintiffs’ claim. On the 8th day of May 1837 the plaintiffs called upon an attorney to issue a writ against the defendant, returnable to the next ensuing August Term of the County Court. The attorney on that day filled up the writ and left directions for it to be given to the plaintiffs if they should call for it. — The writ however was not delivered to the sheriff until the 21st of July following, whén it was executed .and returned to August Term of the County Court of Chow-*22an. The notes due from the plaintiffs to Bullock and Gregory were endorsed to the defendant on the 8th day of July 1837, for valuable consideration. The plaintiffs, the attorney and the sheriff all resided in the town of Edenton.

Upon these facts his Honor being of opinion that the' defendánt was not entitled to a set off for the notes, gave judgment for the plaintiffs: from which the defendant appealed.

*A. Moore and M. Haugion*for the defendant

contended in support of the first plea, that the time of issuing the writ was when it was delivered to the sheriff, and referred to the 1 Rev. Stat. c. 31 sec. 43, and the cases of *Atkinson*v. *Clarke,*3 Dev. Rep. 171 and *Palmer*v. *Clarke, 2*lb. 354. Upon the second plea they referred to Babington on set off 82.

*Heath and Kinney*for the plaintiffs

insisted that the plea of set oil' must be true when the suit is commenced, and cited *Evans*v. *Pross'er,*3 Term Rep. *186*— Rogers v. *Ladbrooke,*8 Erig. Com. Law Rep. 280 — Jefferson County Bank v. *Chapman,*19 John. Rep. *322*— Haston *vJRishop,*3 Wendell, *13*— Brathwaitev. *Coleman,*2 Sand.on P. and E. 3Ed. *790*— Boy *den*v. *Odeneal,*1 Dev. 171.

Ruffin, Chief Justice.

In our opinion the defendant is not entitled to the set off under either plea. The first is, that the notes were endorsed to the defendant *before and at the commencement of this suit.*This is not true in point of fact. The assignment was on the 8ih of July and the suit we think was commenced on the 8th of May preceding, on which day the writ is dated, and as stated in the case, truly dated and filled up. The suing out the writ from the proper officer, or purchasing it, as it is called sometimes, is so universally deemed the bringing suit, that no exception is recollected by the Court. It is unquestionably so within the statute of limitations, which uses the very words “ that all actions shall be *commenced*or brought within the time and limitation expressed, and not after.” While the *teste*of the writ on the one hand is not the commencement of the suit, for the benefit of the plaintiff; so on the other, the service of it, or its delivery to the sheriff, or any such thing is not requisite to the commencement of the suit for the benefit of the defendant; but *23only getting the *writ*— impetratio *brevis, Johnson*v. *Smith,*2 Bur. 950. There are many cases to that' effect. The form of pleading also establishes- it. The constant form is, “ that the defendant did not assume within &c. *ante impetra-tionem brevis.*Why ? Because - obtaining the writ, sealed and complete in form, is in fact and law the commencing suit. If this standard were departed from, it would be altogether uncertain what would amount to bring suit — a point that cannot be remaining to be settled at this day. The plaintiff has proceeded on that very writ, and brought the defendant into Court under it as the leading process in this action. Its date would determine the commencement of the suit in reference to the statute of limitations, if the defendant had pleaded it. For the like reasons, it determines it for the purposes of the present plea.

The second plea, presents a question, which is not so free of doubt. The plea is not *actio non;*but that the plaintiff ought not *further*to prosecute his suit, *because since the commencement of this suit*the notes made by the plaintiff were endorsed to the defendant. None .of us remember such a plea in practice; nor have we been referred to any such precedent, or an adjudication giving colour for it. The Council for the plaintiff relied entirely on a passage in a modern treatise, Babington on set off, 82; and insisted on the reasonableness and propriety of the plea. That author does seem to suppose, that a defendant may avail himself of a set-off obtained after action brought, by plea in bar to the *further*prosecutiou of the suit. But he cites no authority for the position. He assumes, that such a demand is a legal set-off’; and if that.be so, the author infers, that it must be pleaded in this form, Because it had been decided in the cases to which he refers, that it could not be by way of *actio non*generally, that is to say in reference to the commencement of the suit, nor in the more limited form, “that the plaintiff before and at *the time of the plea pleaded*was indebted.” That consequence is logical, if the proposition assumed be true; but otherwise not. It does not follow that it can be pleaded in this way, because it cannot be pleaded in either of the others; for it may not be a set-off within the statute and- therefore is not pleadible in any form. Our *24researches and reflections induce us to adopt the latter opin-' We think it is not merely a question as to the proper form of the plea; but that according to the principle of the statute, this is not a set-off.

It was formerly held on demurrer in the case of *Reynolds*v. *Beerling,*stated in a note, 3. T. R 188 that the plea of a judgment, recovered by the defendant against the plaintiff after suit, and before plea, was good. It does not appear certainly, nor can it be collected from observations on it in subsequent cases, what was the form of the plea. There is reason, however to say, that it was *actio non;*because in no other case is there an attempt to support the decision upon the ground that the plea was in bar of the 'further prosecution of the suit. The decision itself professes to be founded on the authority of *Sullivan*v. *Montague*Dong. 108, which established as a general principle, that *actio non*goes to the time of the plea. The inference is, that under a plea *actio non*it was held to be sufficient if the demand of the defendant existed at the plea pleaded. As an authority to that point, it is precisely opposed by two subsequent cases. In *Evans*v. *Prosser,*3 T. Rep. 186. the defendant had a set-off, which in fact subsisted before action brought, and so appeared in the plea, but he pleaded it as one “ before and at the time of plea pleaded.” Upon demurrer it was adjudged against the defendant though he was afterwards allowed to amend by stating the set-off according to the truth, as one “ before and at the commencement of the suit.” Before delivering the opinion, time was taken to look into the cases; and Mr. Justice Buller, speaking for the Court, said that *Reynolds*v. *Beerling*could not be supported in this pojnt. In *Hanky*v. *Smith, 3*T. Rep. 507, Lord Kenyon said, if the bill had come to the defendant’s hands *ex post facto, as after action brought,*there would have been no mutual credit, and consequently there could be no set-off.

The observation is obvious upon those cases that there is not the slightest intimation, that the plea of set-off may be pleaded in bar to *the further*prosecution of the suit; and if there had been an idea of that sort, it is difficult to suppose it would have been overlooked, especially as it might have sustained *Reynolds*v. Beerling, and excused the Court in *25*Evans*v. *Prosser*from expressly over-ruling their own decision, made four years before. But if either of those cases turned on the form of pleading, in *Hankey*v. *Smith*which was on non-assumpsit and notice of set-off, the remark of Lord Kenyon is general, that where the matter arises after action brought, it is not a case of mutual credit, within the act. That observation seems to us to present the question in its true point of view.

The statute was made to prevent multiplicity of suits. That is the object of it. As the means by which that end is to be attained, it enacts that where there are mutual debts subsisting between the plaintiff and the defendant, one debt may be set against the other.” The intention was not merely to give the defendant the benefit of .his debt in the action brought against him, without putting him to the delay, and expense of a cross action. If it had been, then he ought to be permitted to plead a set-off acquired *at any time*after plea pleaded, by way of plea since the last continuance, as he would plead a payment made pending the suit. But this has never been done ; and the plaintiffs’ counsel admits that a set-off accruing after plea cannot be pleaded *puis dar-rein continuance.*We believe that is true ; and it seems to furnish a strong argument against this plea ; for it is in the nature of a plea since the last continuance. Why may not a plea of that sort be put *in'(*Because no- injustice is done to the defendant by denying him the plea, since he does not lose his debt thereby, but may recover it by action; and because the statute did not mean that the plaintiffs action should be barred in any case in which it was at first properly brought. This shews, as was just said, that the scope of the act is not merely to dispense with an action on the part of the defendant. What then is it ? The great purpose was to effect a liquidation of mutual debts, without resorting to suits, not only by each, but by either party. The statute looks at the balance as the debt; and therefore if one of two persons, having mutual dealings will sue the other, instead of exchanging discharges, the party sued is allowed to set-off his debt against the other as a bar to the action. In other words the plaintiff is made to pay the costs as a penalty for his wan. ton and obstinate litigation. But this is applicable only *26upon the state of facts both debts *existed at*the time su’t brought. For in no other *is*a plaintiff to blame for and therefore in no other ought he to be barred, or costs. With this the words of the act before quoted agree : Mutual debts subsisting.” *Subsisting*— when ? Manifestly at a point of time when the parties mutually gave — trusted to each other ; and when, that is to say at same point of time, the- purpose of the act might be ful-by satisfaction to each party without any suit by either. must necessarily be before and at the commencement the suit. If it be objected that this will exclude negotiable instruments from the operation of the act, although held by defendant at the commencement of the suit, unless the had notice thereof; the answer is, not so. Such, instruments are.embraced in the act without doubt, whether plaintiff knows or not in whose hands they are. The of the security imports an agreement by the plaintiff the defendant might take it; and when he sued, he either or might have known by enquiry, that his debtor was - his creditor. Every debtor is bound to seek his creditor. plaintiff is therefore culpable, if he sues when there is no debt due to him; and is justly subjected to the But it is entirely the other way when the plaintiff becomes the defendant’s debtor, after he brought his own It is *to*be recollected, that the only real subject of controversy is the costs of the action; for the defendant has remedies for his debt. Why should the plaintiff be condemned in the costs, or even lose his own costs.— could not before suit give a credit to the defendant a debt which he did not then own; and he did no wrong in bringing the action; and he has done no act since bar it. He has therefore in justice and law as much to the costs as to the debt. Generally where matter subsequent bars an action, it consists of some or agreement on *the*part of the plaintiff himself, and is constituted, as this is, by the mere act of the defendant, the plaintiff release the debt or receive payment after ac-brought, it may be pleaded in bar to the further prosecution of the suit, if before plea pleaded; or, if after, since the last continuance, technically. In those cases there is judg- . *27ment against the plaintiff for the costs, because it was his folly to extinguish his demand without receiving his costs, But a set-off is not a payment, it is only made to amount to a satisfaction by operation of law. Now, the law works no wrong: and therefore will not deprive the plaintiff of the costs to which he was once entitled, and in abandonment of which, he has since done no act. The case resembles that of a tender more than any other. If made before suit, it may be pleaded in bar, and the plea supported by bxánging the money into court. The costs then are alone in and if the full sum was tendered, the plaintiff pays them because his suit was unnecessary. But tender and refusal after suit brought, is, as a plea, no bar; because it admits the necessity of the suit, as well as the justice of the demand, and the plaintiff ought therefore to have costs. By the modern equitable practice, the defendant in such a case pays principal, interest and costs up to the time into court, and the Court lays the plaintiff under a rale to take the money, or proceed further in the suit at his peril. But that has been confined to cases of the payment of money, and has never been extended to a set-off in actions — at all events, not in the stage at which the question is raised on this record.

*26Generally, ter'subse-'not quent, bars agreemenT on the part *27as in the payment1 • go-tioniscom- •

A tender and refusal after suit brought is, as a plea, no bar— However by the modem equitable 'practice, upon the defendants paying principal, in terest ?nd costs the plaintiff dei!aiad to receive it at his peril, has been -confined to cases of payment, and has never been extended to a set-on.

Upon the whole, the Court is of opinion that only mutual debts subsisting at the time of action brought as debts to and from the plaintiff and defendant, can be set-off. Whether a debt from the plaintiff to the defendant subsisting at the time when the writ is sued out, but becoming payable afterwards. and before plea pleaded, may be availed of as a set-off by a plea to the further prosecution of the suit, is a question not necessarily involved in this case, and therefore not decided . ^ •by it. , '

Pjsr Curiam. Judgment affirmed, °