Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-11-08

Equity IL Is ElBnb every where. q re-
lief is not granted, in such q case, on any
peculiar ground Of Equity Jurisdiction,
such IS fraud, accident or mistake, but
on the simple ground that it is right, to
prevent hardship.
Now the Civil law is very different.
It is thus stated in the " Analyss des
RaRdectes de POHier, by MoRRAU DE
MoNTALIN, from the Psndects them
selves:
Compensation is the reciprocal bal
ancing Of q debt with 3 credit. He WHO
is sued by his creditor, who is at the
| same time his debtor, may always repel
his demand by offering him cOmpensa-
ton" The Digest itselfsays Book XVI,
TT. 2,de CompeHs.), Compensate est
debit ct credit inter sc contribute. In
uSguisQue credItOrcm slaSDl, eandemqus
deBtorem pctsHtem summoned, 81 parGtWs
est c~OHlPeHsGJe.
And the reason given for it, by L. 5,
is, d" Heo compensate necssSdrid est,
quia interest nostra pottu8 non s~olUere,
guam solutlgn repstere." Compensation
is Of necessity, because it is more to the
interest OF a party not to pay, than 70 be
put to an action to recover back what be
mas paid.
Compensation is effected by opera
ton OF law (de PleiH dr. Oit, ipso Jure)i in
actions Of good faith. Finally it was
settled that compensation should take
place pleHo .jure in all actions real or
personal. Difference Of origin and even
Of cause Tor consideration in the two
debts, does not prevent compensation (;
FOR il one owes us money and we 1--WE
him, though by virtue Of different cor
tracts, compensation is admissible.
Every debt that is demanded OF Us, and
from Whatever cause it proceeds, may
be excluded by the compensation Of any
other debt whatsoever. Compensation
takes place as well In an action for dam
ages for q tort; and against the Republic
or a municipal corporation, except in
particular cases.
"f one has paid a debt, when he could
have opposed compensation, he has an
action to recover back money paid when
not owed; and IL after compensation we
still owe 8 balance, and We pay it, or il
we tender it or deposit it, and the
Plaintiff refuses to receive it, we may
sue him for restitution Of our securities
given.
The ju~risconsult PAUL said LAW 4
same title, that NERATIgs and POM
PoNIUs agreed that if a principal had the
right to retain any amount by cOmpensa-
ton, his surety owed so much less, ipso
jure, no matter what the nature Of the
compact was, in which he was surety.
There was in every case, "ipsO Jure
inuicem ~I5erdtio," and when one debt
bore interest, and the other did not, q
| Constitution OF the Emperor SEvERUs
provided that no interest should be pay
able on the amount which was mutually
due.
In Law q, Of the same title, We find,
quoted from PAUL, d" Posteaquam pIacuit
inter Onlnes, id quOd iuUicem de6etEr, Up
so jure c~ompensari" etc.
The debts, DURAETON says, pay es oh
other; &C est uHe serte d i8PuRGti0H
que chacune des parties Jait de &c gu
ellie dot 81 re qui hi est du: Is Fuse
/ patient a Euss-ulemes.H For these rea.
sons, he says, the law makes compensa-
ton produce its own effects de PletH
droi, ever without the knowledge Of
the parties, and even in spite Of them
selves, so that the two debts are extin-
guished iDsO fdctO, to the amount Of their
respective quantities. Theparty sued for a
debt must, be says, if compensation has
extinguishad it, nevertheless plead that it
has taken place, for the Judge cannot di-
vine this but this in no case prevents its
being operated de plein droit, If all the
conditions required by the law are found
to have been complied with. The judge
then only declares that fact, and that, in
consequence, the debt was eItinguished at
such q time, at least to the amount Of
the smaller debt. Consequently from
that moment interest will have ceased
TO run on either debt, to that amount,
privileges and hypothecations will have
been efaced, and snreties liberated, in
the same proportion and if the Defend
ants debt is larger than the Plaintiffs,
the latter will be sdjudged to pay the
costs, because nothing " IS due him.
For debts to be ~extinRuished ipso jure
by compensation, DURASTOS says, that
five conditions must concur:
Each debt must have for its object 3
sum Of money, or a certain quantity OF
fungible things Of the same kind that
is, things that can perform the Office OF
paying the debt. Each must be liqui-
dated each mast be demsndable due
One Of them must be owed to the per-
son who demands the compensation, and
the other to the person to whom the
compensation is opposed and neither
debt must be Of the number Of those ex-
cepted by the law.
No other conditions are necessary. It
does not matter that the debts are paya-
bic at different places. When the Eve
conditions concur, compensation extln-
cuisines debts de plsin droit, as a verita-
BILE payment would do. 1t Is the image
Of payment.
A consequence OF this is, that when
once so effected by operation oflsw. the
parties cannot direct the effect Oft upon
another debt to the prejudice Of those
who have an interest in the acguittal OF
that which has eXtinguished any more
than they could change the application
Of q payment made by the law itself in
the absence Of any application Of il by
the parties at the time Of the payment.
ZAoHARIE says that the personal in
capacity Of the parties interposes no OBJ
stscle to the compensation, which is ope-
rated, although they are not capable OF
paying or Of receiving q payment. It is
operated pleHour producing al the
effects which the law attaches
10 it, without the Intervention,
and ven without the knowledge Of the
parties. The parties may renounce avail.
ing themselves OF q compensation so et-
fected but the renunciation does not
cause the revival Of the compensated
claims, which remain, as to them, dedni-
lively eXtinguished. MARCADE says
that the defendant, 10 opposing eompen-
saton to the plaintiffs demand, only
insists upon and ayRils himself Of the
compensation that has been legally &C.
complished, and he says that II the de,
PENDANT pays the plaintiff without de-
manding the compensation, he does not
afterwards u % bis " debt, but for
50 much money paid thst Was not due;
for his original claim is extiDgOished, by
the compensation effected PteaO Jure.
There have not been wanting Judges
who have thought that thsse principles
OF the civil law ought to bavs been
adopted, when the statute allowed plea or