Wolfe v. Washburn

Curia, pe?' Woodworth, J. (after staling the facts.) It is urged that, as a guardian had been appointed for the heir of Hallenbech, the plaintiff cannot sustain the action. The plaintiff stands in the relation of trustee, and must, Undoubtedly, account with the guardian ; but with this, [265] ! apprehend, the defendants have no concern. They are bound to pay the plaintiff in the terms of their covenant. In point of fact, it appears from the evidence, that the jury did allow, as a set off to the defendants before the justice, the rent, or a part of the rent, secured by the covenant. But it also appears very satisfactorily, that the covenant was not offered on that trial as a set off, but to show that Washburn could not sustain an action on his account, in as much as the rent was not then payable ; and that the claims of the parties against each other were suspended until the rent became due. The counsel for the defendants, before the justice, moved for a nonsuit, which was denied. After this, the counsel put the covenant in his pocket. The jury retired, and at the request of the justice, he delivered the bond to the constable, who carried it to the jury. The covenant was not the subject of set off at law, ft not being between the same parties to the suit before the justice. Besides, it was not thenbroken. The trial was on the 1th of February, 1825 ; and the rent did not fall due till the Í4í/t. And the weight of evidence is, that it was not offered as a set off. If, notwithstanding this, the jury have arbitrarily allowed it, they have done Washburn injustice ; but that is no cause for depriving the plaintiff of his right. The certificate of the justice states that the defendants, on the trial, claimed to have the rent secured by the covenant allowed to them by the jury in making up their verdict. The defendants in this cause objected to evidence contradicting the certificate in this respect. But it seems to have been admitted, as there is no mention in the case, that the judge allowed the objection. I incline to think, that the fact stated by the justice, to wit, that the defendants claimed to have the rent allowed them by the jury, is extrajudicial, and regularly no part of his record. It is not the statement of a proceeding, or the evidence; but rather that the defendants urged, byway of argument, that the rent should be allowed. The Í certificate of a justice must contain the process, pleadings, j [266] evidence, verdict and judgment. Beyond these, he is not I called on to certify. If he goes farther, his statements j conclude no one. I But, on general principles, a legal demand cannot be extinguished in this manner. The defendants might, on the ground now r.elied upon, have requested the jury to allow them money due on a bond, payable ten years after the trial; and if, unadvisedly, the jury had done so, it would undoubtedly have been good cause to reverse the judgment ; but would not bar them of their remedy by action for the same claim, when it should become due. This is founded on the plain principles of reason, and of law. An allowance to a party by way of set off, is always founded on an existing demand in proesenti, and not one that may be claimed in futuro. So far as respects the present action, the recovery before the justice has no operation. I am therefore of opinion, that the plaintiff is entitled to judgment. Judgment for the plaintiff.