#### WILLIAM L. MIZELL *vs.*MAURICE S. MOORE.

The plaintiff commenced his action of assumpsit on the 3rd of July, 1846?. On the I3th when the Court, to which the action was returnable sat, the. defendant pleaded as set-offs certain bonds of the plaintiff’s due the 3rd of July. On these bonds the defendant had sued out warrants against the plaintiff on the 7th of July and recovered judgments on the 10th of July 1846. *Held,*that these bonds could not be introduced as set-offs, because they were merged in judgments before the plea pleaded.

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.

The ease of *Haughton*v. *Leary,*2 Dev. & Bat. 21, cited and approved.

Appeal from the Superior Court of Law of Martin; County, at the Spring Term, 1847, his Honor Judge Bailey presiding.

This is assumpsit for goods sold, and was commenced, on the 3rd day of July, 1846. The defendant pleaded, amongst other things, non-assumpsit, and a set-off due to' *256him on three several sealed notes of the plaintiff. Upon the trial the plaintiff- proved his demand ; and the defendant then produced the three bonds, as described in his plea, which were due before and on the 3rd day of July 1846. They appeared to have been cancelled by having the word “ Judgment,” written across the face of them, and it was then established, that on the 7th day of 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 *-f*and that the defendant therein (the present plaintiff) then staid them by giving security according to the Statute, which stay expired on the 10th day 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 to $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,” &c. Upon the 'verdict, there was judgment for the defendant for his costs; and the plaintiff appealed.

*Rodman,*for the plaintiff.

No counsel for the defendant.

Ruffin, C. J.

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 *257the plea was put in, having been staid. Indeed the plea is of the 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, 3 Dev. & Bat. 21, but it is plain that it must continue to be due in the same form, when pleaded. The Statute meant, indeed, to do away 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 costs on him. The défendant can no more set-off these bonds, after merging them in 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 precedents, it alleges, “that the plaintiff before and at the time of the commencement of this suit &c., was, *and still is*indebted to the defendant in &c., upon and and by virtue of a *certain writing obligatory*sealed &c., and now shown to the Court, &c., which said *writing obligatory,*at the commencement of the suit, was *and still is, in full force and effect, not released, paid off, satisfied, cancelled, 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 *tó*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 promoting *258justice 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 Coriam. J udgment reversed, and a *venire de nova.*