The Nevada Democrat., 1857-11-18
NEVADA DEMOCRAT.
LEGAL INTELLIGENCE.
county Court, november Term, i


bridgeport in said county OF Nevada.
Defendants admit their liability TO pay the
amount of rent claimed, aud as stipulated in the
written lease on file in said cause, but claim
set-otf of certain damages sustained by them
In suit in trespas, for cutting timber on lands
adjoining said mill. The privilege o! so cut
ting, aud warranty against any lawsuits by
reason thereof were guaranteed to defendants in
said lease, as follows-to wit: "And the said
party of the first part further covenants aud
aRl ees to warrant the said parties Of the second
mart against the rights and acts of all persons
who claim or may claim the timber on the lands
adjoining said saw mill, and guarantees that the
said parties of the second part shall enjoy
the right aud privilege of cutting and appro-
priating timber on all the land adjoining
said mill, and at the same distance thereirom at
which the said party of the first part has hereto
fore cut timber for said saw mill. And the said
party of the first part further covenants and
agrees to warrant and protect the said parties
of the second part against all suits ut law which
may be brought against them for cutting and
appropriating timber upon the land adjoining
said mill as aforesaid"
The plaintiff admits that the timber cut by
defendants, and for which they we're sued, was
standing aud was cut within the limits included
in the foregoing warranty.
Let us first see then, how far the right Of set
of exists, if at all. in cases like the at bar.
And in the consideration of this question, con-
Tess strong inclination on my part, to discover
among some OF the adjudged cases, sufficient
authority for allowing the set-of claimed be.
leving that equity and justice both, require that
such privilege should be allowed in all cases
wherein damage results to a lessee, by reason
of q failure of the covenants Of the lessor. But
strong as my leaning is, cannot find that
Courts have gone thus far. Where transactions
constitute an account between parties, composed
Of mutual receipts and payments, it is contrary
to reason as we'll az the understanding of the
parties themselves. to consider anything but
the balance to be the real debt between them.
Yet at common law, it was necessary for each
party to sue the other in separate actions. And
until the Statute of 2. Geo. 2. mutual debts
were distinct and inextinguishable, except by
actual payment release. This inconveni-
ence, says writer OIL this branch of the law,
for long time remained reproach 10 English
Jurisprudence. Ia the United States the pro-
visions of the Statute above referred to, have
been generally adopted. And the State of Cal
ifornia has made ample provision for set-of of
any counter claim or demand existing against
plaintiff at the time suit is brought.
Mutual credit in common acceptation at
least is certainly confined to pecuniary de-
mands-and as the acts above referred to- speak
of setting off one debt or counter claim against
the extraordinarily referring to a certain fixed
sum- demand or claim, it strikes me it can hard
ly be understood that the Legislature intended
TO embrace anything short Of this as proper
subject Of set-Off How then can an account be
stated between the parties to the suit at bar--or
how can claim made for breach ofwarranty,
as yet unfxed, and undetermined, be turned in
to a debt. There is nothing in this case which
can form an account between the parties. Ca
the one side there is demand for rent, accrued
under an express contract or lease, certain both
as to the time of payment and the amount to be
paid. On the other. there is a demand for dam
ages sustained by defendants, by reason OF
suit brought against them for exercising right
guaranteed by the plaintiff and against which
suit. plaintiff also gave his warranty.
This demand. it appears to me, is Of q nature
too uncertain and contingent to be set off--and
especially is it so. when We take into considera-
tisn the further fact, that the suit in which the
damages 10 defendants are claimed to have
arisen, is still in esse and undetermined Aud
the authorities are explicit in the proposition
that uniquidatcd damages cannot be set-of,-
|. Black. 394; 2. john $50 s. Conn. 1926 l.
McCord. 7; 3. Wend. 400; 2. Ycatcs 20S; /.
SUNNI. All ; 2. Blackf 81 /. A. X. Marsh. Al
G. Hast 397 s. Wash. Q. G. 232 /; 3. Bibb 40.
In Freeman VS.. Hyatt Il. Black. 394) in an
action for money due for parcel Of cloths, the
Court would not permit the defendant to show
by way of set-of that former parcel of cloths
bought OF the same plaintiff, were burnt in press
ing, which bad greatly lowered their value; but
put the party to his special action on the case.
In Hewlett vs. Strickland, (Cowp. SGD Lord
Mansfield and the other Judges would not per-
init unlqudated damages, occasoned by the
breach of other covenants to be performed by
the plaintiff, TO be pleaded by way Of set-off
"These damages" says his Lordship, ''arc no
debts" aud Mr.. Justice Aston was clear that
IAN unliquidated demand, or uncertain DANA
ges could not be set-Off." So in an action of
R...- al. If.
mitted to set-of damages which he had sustain
ed by reason Of breaches of certain covenants
on the part of the landlord. "'rhe sum to be re-
covered" says Lord Kenyon, ais uncertain; it
must be assessed bv n jury, and there is no pre-
tence to say that those uncertain damages NAV
be set-Off in a demand for rent" In the case
of Isabella Waters VS.. Cohn and Wife, this Court
held that whenever the non-performanee Of
covenant on the part of the lessor. amounts to
an eviction of the lessee then only is it a prop
er sct-Off to demand for rent" And the rule
of law therein laid down, is, that where a party
actually takes possession of, and occupies q
house, it is no excuse for the non-payment of
rent that the lessor has not complied with bis
agreement. The remedy is by an action in
damages for the breach of the agreement
And may say that have met with nothing in
the investigation Of the authorities since that
opinion was rendesed. to change the conclusion
then expressed. The claim of the defendants,
therefore, is not such an one as can be allowed
as proper set-of against the demand of the
plaintiff.
In rccoupment. however. a different doc
trine prevails-and defendant will be allowed
to recoups, where the demands of both parties
spring out Of the same contract or transaction.
although the damages on both sides are unli-
quidated. 3 Hill l74. And in Reab VS.. Nc
Allister 8 Wend. 1O9 Chancellor Walworth, in
furtherance of this doctrine, pertnently re-
marked that "there is a mutual equity, especi-
ally as to claims arising out Of the same trans
action. that one claim should compensate the
other, and that the balance only should be re-
covered" The authorities, however, do not go
so far as to compel defendant to set up his
claim in to r,lainiinrin