Ransom v. . McClees

Pearson, C. J. (After stating the facts as above,) Relieving the case from the many useless allegations with which it is encumbered, and the intricacies of pleading, and “ obscurity and confusion” caused by argumentative pleading, and by an attempt to follow the “ new mode of procedure,” with which neither the Judges nor the members of the bar have as yet become familiar, and putting it solely on its merits, it amounts to what is stated above. The question is, ought the note of the intestate to be *20 allowed as an equitable set-off, or counterclaim, so as to satisfy the note sued on ? Under the ruling of his Honor, the jury found for the defendant. The note was assigned to the plaintiff after maturity, so he is fixed with notice, and took it subject to any set-off or other draw-back the defendants were entitled to as against the assignor. In other words, he stands in the shoes of Mary Dillin. The note in the hands of Mary Dillin, was assets, and ought, in the due course of administration, to have been applied by her to the discharge of the note held by the defendants. According to the old mode of procedure, the defendants could have made no defence to the action, but could have maintained an action against her on the note of the intestate, fixed her with assets by reason of the note sued on, and taken judgment. Her insolvency and the insolvency of her sureties, raised an equity, and without suing at law (for that doctrine is confined to equitable fi. fas.) the defendants could have confessedjudgment in her action, and maintained a bill, to have the judgment satisfied by the note of the intestate, and in the meantime for an injunction, on the ground, that their remedy at law was inadequate by reason of the insolvency, and should she force the money out of the defendants the injury would be irreparable. The new mode of procedtue dispenses with this circuity of action, and allows the equity to be set up against Mary Dil-lin, or her assignee with notice, as a bar to the action, without going into another court for relief. So, upon the merits, we are satisfied that the defendants were entitled to judgment. It remains to enquire, is there any error on the record which entitles the plaintiff to a venire de novo, although the Court and jury arrived at a correct conclusion. His Honor very properly omitted to notice the several allegations of the defendants touching the irregularity of the order of sale, &c., and also the several demuirers put in by the plaintiff. A defendant is to answer or demur; if he answers, the *21 plaintiff is to reply or demur, but is not at liberty to do both at the same time : O. 0. P. §94. The effect of thus pleading, is that the answer or reply waives the demurrer, and the case stands open to no objection, except for the want of jurisdiction, or that “the complaintdoes not state facts sufficient to constitute a cause of action:” §99. The effect of a demurrer at law under the old mode of pleading, is to admit the facts for the purposes of the case, so that if the demurrer be overruled, there is judgment for the opposite; party. In equity practice the effect of a demurrer, is to admit the facts for the purpose of the argimnent, and if the demurrer be overruled, the defendant, as of course, puts in an answer. As the Code of Civil Procedure rejects pleadings at law, and adopts those in equity, by demurrer and answer, we were at first inclined to think that after a demurrer is overruled, the party may of course answer or reply; but we find, on examination, that if a demurrer be overruled the case is open for judgment, as if the party had made no de-fence, unless he obtains leave to amend his pleadings by putting in an answer or reply: 0. C. P. §131. .“After the decision of a demurrer, the Judge may, in his discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead over, upon such terms' as may be just.” In our case, beside the objection that the plaintiff was not at liberty both to demur and reply, there is the further objection, that he replies to many of the allegations, and demurs to others, all of the allegations being set out in support of the same counter-claim, there being but one. Section 96, C. 0. P., relied on by plaintiff’s counsel for this mode of pleading, does not sustain it: “It may be taken to the whole complaint, or to any of the alleged causes of action stated therein.” This clearly refers to a complaint containing several causes of action, or an answer taking two distinct grounds. His Honor might also have omitted to notice the allega *22 tions and evidence, in regard to the arrangement proposed by the defendants to the administratrix before she had assigned the note, viz: that they would pay the costs of the petition to sell the land, provided she would allow the one note to satisfy the other; for, the arrangement not being in writing, did not bind her, and the true and only question was, whether the defendants could support the counterclaim, in spite of her, against an assignee with notice, without reference to this arrangement. So the error in regard to it was immaterial and beside the merits of the case. This disposes of article of Appeal, No. 1. The plaintiff has no ground to complain of the charge set out in article of Appeal, No. 2. On the contrary, the defendant had ground to complain, for we have seen that to make out his equity, it was not necessary to fix the plaintiff with knowledge that the bond sued on, was all of the assets of the estate, or with knowledge that the administratrix and her sureties were insolvent. It- was enough if in fact there were no other assets, and in fact there was this insolvency; for the plaintiff stood in the shoes of Mary Dillin and took the note subject to the rights of the defendants against her. It would seem under the new mode of procedure an averment of insolvency is not necessary, that averment in a bill in equity, being made to induce the Court to take jurisdiction, on the ground that the remedy at law is inadequate. But whether an administrator be insolvent or solvent, he ought not to force a man to pay money, if it will be the duty of the administrator to pay it back the instant he receives it. This “right may be enforced” as a counterclaim, which is a beneficial extension of the principle of set-off. It may appear, at first blush, to be hard measure to put the plaintiff in the shoes of his assignor; but the note being over due, was enough to put him on inquiry. By calling on the defendants before he bought the note, he would have been informed of their ground for not paying it, if, in fact, *23 lie cticl not know it before. So, carrying out tbe principle, the plaintiff would have been entitled to judgment for the amount, if any, that the administratrix was entitled to retain for costs and charges of administration, had he made the necessary averment to raise the point; but he chose to go •for the whole or nothing, and must abide by his election. There is no ground to support article of Appeal, No. 3. When the jury announced that they found that “one note should off-set the other,” it was in substance a verdict for the defendant, and his Honor might well have instructed the Clerk so to enter it. And, secondly, the Judge was not bound to take it for .granted, that the jury did not understand him, and for that reason, repeat his instructions. There is no error. Per Curiam. Judgment affirmed.