Whitaker v. Pope

McCay, Judge. We are not prepared to say that the acknowledgment of service and waiving copy was the commencement of suit. It may be that the plaintiff would never file it. The case of Steadman, not yet reported, does not meet this, since there the filing was waived, and the question i^s, whether it must be filed twenty days before [15] có'urt, notwithstanding the waiver. But we are clear there ought to be a new trial. . 1. The acknowledgment of service was notice to Pope that the equitable title to this debt was claimed to be in Dodge, and he could not buy an account against Whitaker after such notice. If he did, he took it with notice of whatever right Dodge might show. The courts of law have, for a long time recognized the equitable transferee, and have protected him against any dealings by the defendant with the original owner after notice. True, Pope does say he bought without notice. But he admits he made this acknowledgment before he purchased. This, as we think, was notice of Dodge’s claim, and that was all the notice he was entitled to. Unless he explain this acknowledgment — show that he did not know what the *writ was, or in some way get clear of this evidence of notice, it is not sufficient that he says he had no notice of the transfer. 2. We think, too, the Court should have allowed the evidence of the pending suit in favor of Brown. Pope stood in Brown’s shoes after the purchase, and if Brown could not set up this debt as an off-set in a suit — by even Whitaker against him — without some special motion or order of the Court, in the nature of a motion, to consolidate and save costs, neither could Pope. A set-off is a cross-action. The plaintiff is not, by our law, required to plead in abatement, in reply to a plea of the defendant. And we see no reason why he may not reply to defendant’s plea matter, which, if he were defendant, he could set up by such plea, to-wit: the pendency of a former suit. Judgment reversed.