The Providence news. (Providence [R.I.]) 1891-1906, 1899-01-11
Suit Originally Brought by the Late Mr..
Banlgan 10 Recover on a Note.
THE SUM INVOLVED is 100000.
Rubber Co. Entered Plea in Set OH, but In Mean
Tine Began Suit For Sums Claimed 10
Be Due From Mr.. Banlgan.

The Woonsocket Rubber company
will have to defend the suit brought
against il by Joseph Banigan. This in
the first OF the suits with the rubber
trust to be. passed upon by the appel
late court, though of course, the mat
ter involved in the decision Is a techni-
cal one. The most notable of the other
suits is Mr. Banigan's salary action
against the big rubber trust of which
the Woonsocket company is an inn
portant part. The counter suit of the
Woonsocket' company is to recover on
several claims against the late Mr..
Banigan's estate.
The opinion of the court, which was
written by Chief Justice Matteson is
as follows: This is assumpsit on a
promissory note for 500. 900 given to the
plaintif by the defendant. When this
note fell due August 3, 1896 the defend
ant refused 10 pay IL on the ground that
the plaintiff was indebted To ii in
larger sum, from which IL requested the
plaintin To deduct the amount of the
note. He declined to do so. and on Aug
ust o, 1896. began this action. making
the writ returnable October 3. 1896.
Thereupon the defendant, on August $,
1896, began an action against the plain
tiff for the sum which IL claimed to be
cue TO ii from the plaintiff, and made
its writ returnable September 26. 1896.
ON the return day of its writ the defen-
dant duly entered IL and filed it's decla-
ration setting forth fully it's claim. ON
October 3, 1896. the return day of the
plaintiffs writ, he duly entered his
case, and on October 49, 1896. the de-
ia - t.ta a limo tn
set off part of the claims declared on in
its action against the plaintiff.
To the pleas i'm set off the plaintiff
replied that he ought not to be held to
answer them or either Of them" because
he says that the said defendant hereto
fore and before the filing OF its said
pleas, to wit. or the Sth day of August
1896, sued out its original writ against
him, thus is returnable TO this court on
the 26th day Of September. 1896, and
heretofore and before the fling OF its
said pleas, 10 wit. on said 26th day OF
September, 1896, declared i'm this court
against him. this said plaintiff on its
action of debt for the same identical
causes Of action as are in it's said pleas
respectively mentioned, as by the files
and record Of it's said other action in
this court remaining fully appears.And
the plaintiff further saith that the par
ties i'm this action and in the said de-
PENDANTS other action are tn, same and
not other or different persons ana par
ties and that said other action SO
brought and prosecuted against him.
this said plaintiff for the same causes
of action as are alleged in its said pleas
as aforesaid is now pending i'm this
court and remains undetermined, all of
which this plaintiff is ready TO verify.
"Thereupon the defendant demurred
to the replication assigning these
grounds of demurrer, only one OF which
II is necessary TO consider. being the
third. viz. that the pendency Of anoth-
er SUIT to recover the same debt is no
objection To a plea i'm set Off
The question thus presented is one
on which the authorities are conflicting.
Some hold that the pendencv-uf a suit
is no objection TO a set off OF the debt
on which IL is founded, i'm another be-
tween the same parties. Stok VS.. Ulrich
| w. q :. 81: Wiltsie VS. Northam !
Bs. 1872; Wat. Set or ed. 9S Others
hold that the set off is not available If !
il appears to be the subject OF a pend !
ing suit when offered. Locke VS.. Miller |
Cand other cases citedD
THE latter doctrine rests on the idea |
that a set off is i'm effect "A Cross-actlon !
and that the defendant cannot be per- /
mitted to carry on two suits for the |
same cause of action at the same time |
since To permit this would subject the !
plaintiff 10 be twice veXed for the same /
causes of action.
I'VE are Of the opinion that the |
weight of authority as well as the bet
ter reasons sustain the plaintiffs con- !
tention that the defendant cannot avail |
itself OF a set off so long at least as IL |
keeps on the docket its suit against the |
plaintiff based in part on the same /
claims set up I'm the pleas of set of /
Demurrer To the replication to the de- i
fendant's plea i'm set eff overruled and /
replication sustained. Case remitted TO /
the common pleas division for further /