Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1854-10-21
HONOLULU, H. l., OCTOBER 2i, 1854

liable to him for damages and non-deliyery of a
portion OF the cargo, to an amount exceeding the
freight claimed
There is no doubt that the bread, -four and beans
not delivered, were very badly damaged, but wheth-
er the damage arose from the negligence of the
plaintiffs, or from the dangers and accidents of the
sea, is question of dispute; and before we pro-
eeed to determine that question we must settle
another, raised by the plaintiffs counsel, which
lies at the very Threshold of this case
1t is eontended by the plaintiffs counsel, that
even admitting that the portion of the goods which
the defendant refused to receive, were damaged by
the negligence of the plaintiffs or their agents,
still, such damage cannot be set off against the
freight In other words that the plaintiffs are en-
titled to recover the full amount of freight, and
that the defendant must seek his remedy for loss
and damage of goods in a separate action to be
brought against the plaintiffs.
The plaintiffs counsel argues on the authority
of Lord Ellenborough, in the case of Richie, vs.
Atkinson, 10 East, 295, and Dduidson vs. G,sU1lae,
IL East, 38l that the defendant cannot set off loss
and damage arising from the negligence of the
plaintiffs or their agents. against the claim for full
freight but must first pay their freight and then
seek his remedy in another and distinct suit
confess that the doctrine contended for is sustained
the cited but with all possible respect for
the opinion of the eminent judge in those cases,
do not consider it eonsonant with either reason,
VI IuOEo QeClslODS on LDaL SUD-
ject. To say that in action brought by the car
rier for freight, the merchant cannot set-off the
loss and damage of the goods arising from the neg
igence or HlisfedSaace of the carrier but must be
turned over to another suit, would in many cases
be nothing less than absolute denial of Justice,
and shocking to all sense of right. In the present
case for instance, the plaintiffs reside in Chile
their vessels have returned, they have no property
here and to force the defendant to a cross action
to recover his damages would be virtual denial to
him of all remedy. The demands in this case are
not such as arise out of distinct and independent
transactions but grow out of the same transaction
and intimately related to each other. There is
a connection between these demands mutuality
of Indebtedness, which in my opinion clearly enti-
ties them to be settled in the same suit. Upon
principle, have no doubt as to the decision of
this question, and think it is sustained by good
authority.
Lord Mansfield, in the case of Green, VS.. Far
rner; 4, Burrows, r. 2220-222l, In treating of
the subject of set-of holds the following language
% Natural Equity says, that cross demands should
compensate each other, by deducting the less sum
from the greater and that the difference is the only
sum- which can be Justly DUE But positive IalC
for the sake of the forms of proceeding and cOnve
nience of the trial. has said that each must and
recover separately, in separate actions. 1t may
give light to this and the authorities cited, if
trace the law relative to the doing complete JUS
tice in the suit, or turning the defendant
round to another suit which, under various cir
cumstances would be of no avail He then gives
a brief history of the doctrine of set-of showing
his view to be- that where the demands are clearly
connected and arise out of the same transaction,
they are the proper subjects of set-oR
Judge Story In his valuable commentaries on
Equity Jurisprudence, vol 2, l434, in treating of
this subject and referring to the decision of Lord
Mansfield in the case of Green, VS.. Farmer, says
As to connected accounts of debt and credit, it is
certain, that both at law and in equity, and with
out any reference to the statutes or the tribunal
in which the cause was depending, the same gener-
al principle prevailed, that the balance of the
counts only was recoverable, which was therefore,
a virtual adjustment and set-off between the par
ties. But there is reason to doubt, whether Lord
Mansfelds statement of the jurisdiction of Equity
in cases of seto is to be understood in its general
latitude, and without some qualifications. 1t is
true, that equity generally follows the law, to
set-off but it is with limitations and restrictions
If there is no connection between the demands,
then the rule is as it is at law. But, IF there is
connection betDeen the demands Equity acts upon IL,
and dllOCS set-of under particular circumstances.
In the case Of Hubert ct. al, vs.. The Pacific
Insurance Company; 2. Sumner r. All, in which
Judge Story refused to allow the defendants the
right of set-of, the demands uncOnnected with
the plaintiffs claim, but grew out of separate and
doctrine for which | contend. g However true it
may be-" says that eminent jurist, that the right
Of set-off Of mutual demands between the parties
is founded in natural justice and equity Ga propo
sition to which | give my full assent,) it is very
certain that the common law has not carried this
right into full effect for by that law the right of
set-of is limited to mutual connected debts, and
does not extend to debts which are unconuected
with each other. The present case is not one OF
mutual connected debts.'' Showing clearly, that
if the debts had been connected he would have al
lowed the set-of.
Courts of admiralty acting upon the general
principles of equity will allow set-ofs by way of
diminishing compensation, when they attach TO the
particular maritime demand submitted to their cog
nizanee by the libel. The set-offs," (says Judge
Story. in Willard, vs. DOrr, MasOn's X: lily
{" allowed in the Admiralty are principally those,
in which advances have been made upon the credit
of the particular debt or demand, for which the
plaintiff sues or which operate By way of dimin-
isbed competsati0n for maritime services on ac-
count of imperfect performance, misconduct, or
negligence; or as restitution In value for DANA
ges sustained in consequence Of gross violations OF
the contract for such services"
The later decisions In the United States on this
pont. except in those States where the statute in
teryenes to prevent sustain the doctrine of setOf
in cases like the present to the fullest extent
These cases will be found referred TO in the U. D
Dig. 9 vol Supp 75S, and in Abbott on Shipping,
5th Am Ed. by Perkins, 5l7. Note l.
In an action brought TO recover the amount OF
freight agreed to be paid for the transportation and
delivery Of certain quantity of merchandise from
Buffalo TO Chicago, evidence, that portion of the
goods agreed to be transported exceeding IN value
the whole amount of the freight claimed, was
through the negligence, carelessness and improper
conduct of the plaintiff. lost and destroyed on the
VOYAGE was held to be admissible, as well IN the
nature of setof. as. also for the purpose Of re-
ducine the amount sought to be recovered by the
plaintiff. Edwards, vs. Todd. l. Scammon, 46S
Again, in the case of the Kaskaskia Bridge Co,
vs Shannon I Gilman Is, it was held, that in an