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Carpenter v. Butterfield.

in justice and sound legal policy, we ought not to [*151] abandon *the fiction, and consider the suing out of

the process as the real commencement of the action. The plaintiff here appeared in the character of a fair creditor. The defendant was justly indebted to him. To recover his debt, he commenced this action, and the debtor, aware of the process, concealed himself to avoid the service; and afterwards, to gain an advantage, and defeat the plaintiff of his action, he purchased the note in question, in order to constitute a set-off, and then submitted to the process. At what time the note became due does not appear. It being negotiable, and in circulation, the plaintiff could not know in whose hands to find it, unless it was presented for payment. It does not appear to have been presented, and the defendant kept it till the plaintiff declared in the action, and then pleaded it, by way of set-off, and contends that, by a fiction of law, he must succeed and charge the plaintiff with the costs of an action, justly and fairly commenced. It may often happen that a note, before it becomes due, may be thus purchased and kept for this purpose; and by a little artifice, every merchant may, in this way, be exposed to be defeated, in a suit rightfully commenced, and improperly subjected, at least, to the payment of costs. I think the fiction carried to this extent, instead of being subservient to the ends of justice, and supporting a fair course of dealing, would tend to injustice, and open a door for practices which ought not to be encouraged. Whatever, therefore, may be the fiction, with respect to the commencement of a suit by bill, in this court, I think this is one of those cases in which fair dealing and legal policy require that we should reject the fiction, and adopt the time of suing out the first process, , as the actual commencement of the suit.

2. The second ground taken by the defendant is, that the defence contained in every plea relates to the time of pleading, ,

Carpenter v. Butterfield.

and that it is sufficient if it then exists. This position, in many cases, is true ; but it is not universally so. It is also true that actio non, &c. as stated by Lord *Mans- (*152] field, in the cases of Sullivan v. Montague, (Doug. 108,) and Reynolds v. Beering, (3 Term Rep. 188, note,) goes, in all cases, to the very time of pleading, and not to the commencement of the action; but this introductory form of plerding is by no means decisive of the question. It is a mere allegation that the plaintiff ought not then to maintain his action ; but the cause or reason why he ought not to maintain it, may, consistently with this allegation, have arisen before or after the commencement of the action; and the subsequent form of the plea shows that, in general, it refers to a time antecedent to the bringing of the action, ante exhibitionem bille, or ante impetrationem brevis, and not to the precise time of pleading, or to any period after the commencement of the action. Still it may, in many cases, properly refer to and allege a time subsequent to the beginning of the action, and up to the very time of pleading; as where the defence arises upon some act done by the plaintiff himself, as a release made, or a payment accepted by him, subsequent to the commencement of the suit. In those and in similar cases, the defendant may, in his plea, state the real time, although after the action brought, and the plea will be good; or if the matter of his defence arise snbsequent to his plea, he may plead it puis darrien continuance. But in all those cases, the matter of his defence must arise from some act of the plaintiff, done in relation to the suit or to the claim on which his suit is founded. I am sensible that the case of Reynolds v. Beering, stands in opposition to this distinction. A judgment obtained by the defendant against the plaintiff, after the action commenced, was there permitted to be pleaded, by way of set-off.

But that case was overruled by the court, in Evans v. Prosser, and Mr. Vol. III.

25

Carpenter v. Butterfield.

Justice Buller observed, that, perhaps, the court did not consider the strict law so much as the justise of that particular case, and that the point could not be supported. The pro

priety of setting off a judgment obtained after the (*153] action brought, and the cases of a *lender, are sim

ilar to the purchase of the note in the present case. They appear to me to rest on the same principle, and I agree with Justice Buller, that the propriety of such set-off cannot be maintained. The true ground of the objection to such a desence is, that when a right of action is absolutely vested, and the action itself commenced, nothing can deprive the plaintiff of his right to recover, except some act done or suffered by himself in relation to that right.

I am, therefore, of opinion, that the set-off cannot be admitted, and that the plaintiff is entitled to judgment.

KENT, J. The question is, whether a negotiable note purchased after writ was sued out, and for the express purpose of being set off against the plaintiff's demand, can be thus set off ?

I have looked into the English authorities on this subject, and they are found to differ. The first case I have met with is that of Lucas v. Marsh, (Barnes, 453. Mich. 18 Geo. II.) in which the court observed, although the observation was not material to the point then before them,) that in case of set-off, where an endorsed note is set-off by the defendant against the plaintiff's demand, it must be proved that the name of the endorsor was written before plea pleaded. This case, with this opinion of the court, was lately cited, with approbation, by Lord Kenyon, in the case of Dickson v. Evans, (6 Term Rep. 59,) wherein he remarks also, (and, as it appears to me, very incorrectly,) that the cases which have been decided on the statutes of set off are uniform.

The next case is that of Sullivan v. Montague, (Doug. 106,) in which a question arose whether a certificate which

Carpenter v. Butterfield.

did not exist at the time of the commencement of the action, could be taken advantage of, on the general issue, it going to the merits of the action; and the court of K. B. all seemed to agree, that matter happening after *the [*154) beginning of the suit, but before plea pleaded, might be given in evidence; and Lord Mansfield observed, that the words of the plea, actio non habere debet, quia, &c. goes, in every case, to the time of pleading, not to the commencement of the action.

The next case is that of Reynolds v. Beerling, (Doug. 112, note. 3 Term Rep. 188, note,) in K. B. 25 Geo. III. wherein the court determined, on demurrer, that a judgment recovered after action brought, and before plea pleaded, might be pleaded by way of set-of. But the court said, they decided this case on the authority of Sullivan v. Montague. Thus far the decisions appear to have been uniformly in favor of the, affirmative of the question before us. But the case of Evans v. Prosser (3 Term Rep. 186,) is subse. quent to the others, and decidedly to the contrary. To an action of assumpsit, the defendant pleaded, that before and at the time of the plea pleaded, the plaintiff was indebted to him on a promissory note payable to a third person, and endorsed to the defendant; and, on demurrer, the court deci. ded, that the case of Reynolds v. Beerling was not to be supported, and, consequently; that the defence must relate to the commencement of the action, and judgment was given for the plaintiff.

This last case was sanctioned by Lord Kenyon, in the case of Hankey, foc. Assignees, foc. v. Smith, 8-c. (3 Term Rep. 509,) decided at the same term. He observes, that the mutual credit in that case, within the set-off act, was constituted by taking the bill on the one hand, and selling the sugars on the other; though, if the bill had come into the defendant's hands, ex post facto, as after the action was brought, it would have been otherwise.

From this review of the cases, it will appear that they cannot afford decisive ground, as authorities, for the

Carpenter v. Butterfield.

[*155) determination *of the present action. The language

of our act relative to set-off, seems rather to apply exclusively to matter existing at the commencement of the suit. It says, that if two or more persons dealing together be indebted to each other, and one of them commence an action, &c. It seems to relate to the situation of the parties when the suit is brought, and requires that they must then be indebted to each other. The doctrine cannot universally be true, that matter happening after the commencement of a suit, and before plea pleaded, may be set up against the plaintiff. “If a man,” says Coke, (Co. Litt. 248, b.) “ be tenant or defendant in a real or personal action, and, hanging the suit, he entereth into religion, by this the writ is not abated, because it is by his own act." So it has been determined, (2 Ld. Raym. 1527,) that if a feme sole marry, after writ taken out against her, she cannot plead her coverture, and defeat the plaintiff's writ. Indeed, it is agreeable to justice and sound principle, and so I take the rule to be, that if a plaintiff, has a valid cause of action, when he commences his suit, it shall not be in the power of the defendant to defeat the action, and charge him with costs, by an act of his own, afterwards, and to which the plaintiff is not a party. In the present case, if the defendant was to prevail, it would be by an act done mala fide, for it is stated that he purchased the note after he had knowledge of the commencement of the suit, and for the express purpose of defeating the plaintiff's action. Such an abuse of the set-off act can never be permitted. The doctrine of set-off was taken from the civil law, and was introduced to advance justice and prevent a circuity of action. It was never permitted for the purpose of fraud. Without, therefore, giving any opinion as to

the general question, whether matter arising after [*156) suit brought, and before plea pleaded, may *not be

pleaded or given in evidence, I am satisfied that in this case the set-off cannot be allowed.

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