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 "tender, are similar 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 defence 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-off. 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 subsequent 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 decided, 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, &c. Assignees, &c. v. Smith, &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.

Carpenter v. Butterfield.

LEWIS, Ch. J. and LIVINGSTON, J. dissented.

Motion denied.(c)(d)

(c) [Old note.] See 2 Johns. Rep. 342, 346; 1 Caines, 69; 4 East, 502, 507; Le Bret v. Papillon.

(d) The Revised Statutes of New York, 2d ed. vol. 2, p. 450, § 39, provide that a set off must have existed at the commencement of the suit and must then have belonged to the defendant. That this is the general rule, see Huling v. Hugg, 1 Watts & Sergeant, 418; Cox v. Cooper, 3 Alabama, 256; Carfren v. Canavan, 4 Howard, 370; Barbour on Set-Off, ed. 1840, p. 91, et seq. An illustration of this doctrine is shown in Kelly v. Garrett, (1 Gilman, 649,) where notes of a bank were introduced by way of Bet off in a suit where the bank was the plaintiff in interest, it was held, to be incumbent on the defendant to prove to the satisfaction of the jury that he held them when the suit was commenced. And another in Cox v. Cooper, (cited supra,) where it was held, that a surety, who pays the debt after the commencement of an action against him by the principal, cannot set off that payment in such action.

In Johnson v. Comstock, (6 Hill, 10,) which arose under the New York statute authorizing the commencement of suits by declaration, it was held that the filing of a declaration is not the commencement of a suit; but the commencement dates from the time of actual service upon the defendant. Accordingly, where the declaration was filed and a copy delivered to a person to be served on the 2d of June, but no service was made until the 8th of the same month, and on the 7th the defendant purchased a note against the plaintiff; it was held, that the note belonged to the defendant when the suit was commenced, and therefore might be set off

Parage v. Dale.

PARAGE against DALE.

Insurance on a vessel at and from New York to Trinidad, and at and from thence to St. Thomas.

The ship left Trinidad in ballast, and while on her course to St. Thomas, she was captured by the French, and recaptured by an American frigate, and carried into St. Christopher's where, by an agreement with the recaptors, the ship was appraised and one third salvage allowed. The captain borrowed 1,030 dollars on bottomry, and paid 600 dollars for salvage, and 430 dollars for expenses and repairs. The ship was valued in the policy at 4,000 dollars.

The merchants of whom the captain borrowed the money, put up the ship for sale at auction for the benefit of all concerned, and she was struck off to the captain at her appraised value, for the benefit of all concerned; but no money was paid by him. The ship sailed to St. Thomas, and arrived at New York in safety, where the insured abandoned for a total loss. It was held, that the insured had no right to abandon, and that the insurer was liable only for the salvage and expenses, being the amount of the bottomry bond.

THIS was an action on a policy of insurance on the brig Penelope, at and from New York to Trinidad, and at and from thence to St. Thomas, dated the 6th September, 1799, valued at 4,000 dollars, the sum insured. The Penelope sailed on the voyage insured, arrived with her cargo safe at Trinidad, and left that place, in ballast, for St. Thomas, and on the 3d December, on her passage to St. Thomas, was captured by a French privateer, and, three days after, recaptured by an American frigate, who carried her to St. Christopher's, where she arrived on the 15th December. It was there agreed between the agent of the United States' ships, and the captain, that one third part of the gross appraised value of the ship should be paid for salvage, in order that she might be ready to proceed with the first convoy, and the captain not having any funds to pay the salvage, and fit out the brig for the voyage to New York, borrowed of Gould and Palmer 1,030 dollars and 60 cents, on [*157] bottomry. The Penelope was appraised at 1,800