March v. . Thomas

Battle, J. The doctrine of equitable set off has several times, been the subject of discussion in this Court, and the principles upon which it is allowed are now very well established. Iredell v. Langston, 1 Dev. Eq. 392; Sellers v. Bryan, 2 Dev. Eq. 358, and Elliot v. Pool, 6 Jones Eq. 42. In ordinary cases mutual debts only can be set off in equity as well as at law. Sellers v. Bryan, ubi supra, Bunting v. Ricks, 2 D. & B. Eq. 130. When the plaintiff or one of the plaintiffs, is insolvent, a bond or note due from him to the defendants may be set off in equity without a strict regard to mutuality. Benzien v. Robinett, 2 Dev. Eq. 67. If the bond or note is payable to the defendant, the plaintiff, obligor pr maker being insolvent, it may be set off upon petition; but *89 if claimed by the defendant but not payable to Mm, then it «can only be done by bill, Ibid. In the present case the bonds which are sought to be set off •against the sums decreed to be paid by the defendant to the several plaintiffs respectively, are payable to the defendant him;self, and it seems that he might have had the benefit of them ■as set-offs, had he proceeded by petition. The remaining «question is, whether the rule to show cause founded upon the «defendant’s affidavit may not be treated and acted upon as a petition filed in the cause. We see no good reason why it may no+. It was served upon the plaintiffs, and they had the .•same opportunity to answer it as if it had been a regular petition. It ought, therefore, to have been treated as a petition in the cause, to which the plaintiffs, Adams and Hampton, •ought to have been required to respond in the usual manner; «and it was erroneous in the Court to order its dismission upon "the motion of the plaintiffs’ counsel. This must be certified to the Court below as the law directs. Per Curiam. Order accordingly.