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

aET-OFF Or COOPERATION.
Another branch Of our American law,
which greatly nseds amendment, and in
which nearly every man hat deals or
trades with others is interested, is that
Of sst-oT, or, as it is called in the Romsu
and French law, Compensation.
Our American law, briefly stated, is
this 'Where two parties owe each other
debts, connected in their origin OF By a
Subsequent agreement, the balance only il
the debt. and he to whom it Is due should
sueonly for that; and il be sus for more, the
opposite debt may be offered in evidence
reducing the claim OF the Plaintiff to the
balance. But where the opposite debts
or accounts are not so connected, each
constitutes a distinct debt, for which suit
msy be brought and when one is sued
on, they may be balanced by setting of
one against the other, by means Of q
notice or plea Of set-of." The defence Of
set-ofis purely the creature OF the statute,
the object OF the statutes which allow it
being to prevent cross-sctiOns between
the parties. The debts or demands do
not extinguish one another to the
amount o. the smaller, at the moment Of
the beginning Of existence Of the later
one; but set-of lie q mode Of defence,
by which the Defendant, acknowledging
the justice Of the Plaintiffs demand,
sets up q demand Of his own, 10 counter
balance il in whole or in part, and asks
the Court to Get Il Of against Il By its
judgment" Consequently the extin-
guishmept Of so much Of the Plaintiffs
demand is effected only by the judgment
ofthe Court 10th debts existing in their
entirety, in Law, until that Judgment is
rendered.
Set-of is IN the nature OF 3 cr~oss-action,
and Is substituted for that, it IS said, for
the very purpose Of preventing unneces-
ssry litigation and Courts have
oslsured parties for not pleading a de-
msnd by way Of set-of, when there was
nothing to show that it might not have
been made perfectly available to the de-
fendznt In that way. Bnt in doing that
It is quite clear that these Courts did
what they had no right to do, and so the
party censured might properly have told
them. For = party who is sued for a
debt is not under the least obligation
to plead by way OF set-oha crOss-demand
that he may have against 3 plaintiff who
ought to allow it as q credit without
putting him to that trouble, and he has
a perfect right, Of which 8 Court cannot
deprive him, to let the plaintiff have his
judgment, and then sue him, in his turn,
on the independent cross-demand. To
censure a man for exercising a legal right,
il an invasion Of his rights, and the er-
mine ought not to protect 3 Judge that
does It.
Nor is the object Of the statute to pre-
vent unnecessary litigation, for the BEN
eft Of the pubHc or the plaintiff. It is,
on the contrary, to facilitate the obtain
ing Of justice by a defendant, and prevent
bis being swindled and dsfrauded.
The consequence Of considering 5 plea
OF notice Of set-of as q cross action is,
that no demand can be set-of, unless an
action on it could be brought by the de-
PENDANT, and sustained. II, therefore, his
demand be barred by Limitation, or
otherwise ~defeasible, II cannot be set-off
At all. To 8 plea OF set-of Of a demand
barred by Limitation, the plaintiff may
specially reply the statute. Butler y. P.
$50 Chdpple. DurstoH, ! CToHp. d TeTU.
E1ch. Rep. I, in which ease the Court
said that & " plea Of set-Of has ever been
considered as in the nature Of q cross
declaration. See also LeUeriHg q. Rttten-
house, 4 Wharf. pa 100, 40. Williams
= Perry 2 StrO5h. 80. Carr 40. Trim
yer U. Pollard. 5 Grafton Va AGO.
From the fact that the plea OF set-of
stands in the place Of, and Is in substance
and effect q ~cross-sctiOn, it must follow
that It is an action commenced by the
filing Of the plea, andthat II the demand
pleaded is then barred, it can not be set
of. The time Of the Institution Of the
plaintiffs suit cannot, on principle,
(though It was so held in Trimysr .. Pol
lard, be 80 substituted for the time Of fling
this plea, 80 that if not then barred the
demand may be set-Of. As DANIEL, F,
there said, the defendant may rely on his
set-of or bring his action, a. be prefers
II he elects TO rely on his offset, he then
sssumes, as 70 the offset, the attitude Of
5 plaintiff. At the moment Of filing the
plea, and not before, he becomes the
actor, as TO that. Why then should he be
barred II be brings suit on his claim, and
not barred if he plead it in set-Off2o' How
can the institution Of the plaintiffs suit
stop the running OF the statute a. to the
defendants claimf
Lord MANSFIELD, who was 8 great
lover Of the Civil law, and transplanted
many OF its principles into the soil Of the
English Law, said, in Green 4. Farmer, 4
Burr. 2221, that the justice Of allowing
cross-demands was supported by natural
equity, the balance only being really due
IN such cases. But the English law and
that OF our States do not proceed on this
principle. AS we have said, the extin-
guishment, in whole or in part, is pro
duced by the Judgment rendered by the
Court.
IT, therefore, A holds BIS bond under
seal IA promissory note in all except the
seaD in q State where the Limitation on
such q bond is flee years, and b holds AS
promissory note, the limitation On which
three yeaTs or If A holds BIS promis-
note on which the limitation is Eve
YEAR, and owes B on open account, even
much a. or more than the amount Of