Caines v. Brisban

Cantine, Senator. The plaintiff in efroi claims to have the21 judgment of the supreme, court, in this cause, reversed, on the ground, that both his special pleas, in bar, are good,. and well pleaded.; and that the replication of the defendants in error, to the first special plea, is bad ; because , it traverses what is merely matter of inducement; that it tenders an immaterial issue; and is argumentative. The supreme court determined that both pleas were bad, and on that determination their judgment is founded; on the. sufficiency, or insufficiency, of the replication they gave no direct opinion. . Though I cannot subscribe to the correctness of all the reasoning of the court, in support of their judgment, yet, from the view I have taken of the subject, my mind has been brought to a conclusion in favour of its affirmance. There appears no good reason against the right of set-off in this "’cause, if the plaintiff in error can avail himself of that right, under a special plea of set-off. The. statute allows a set-off where ‘Í two or more persons, dealing together, are indebted to each other, or have demands arising on contract, or credits, against each other,” Assuming for a fact, what the plaintiffin error averred in his plea, that the goods were, sold to him by Riley, through his "agents, Brisban $• Brannan, for the profit and account of the said Riley, and at his risk, it is, manifestly, a dealing together, between Riley and the plaintiff in error, within the very words of the act. This suit might have been brought in the name of Riley, as well as in the name of the present defendants in error: and, in such case, no one would have pretended to controvert tbé plaintiff’s right of setoff: has, then, that right been impaired by the assignment to Fairchild, or by the circumstance of the suits being brought in the name of Brisban Brannan,-the agents, of Riley? Ithinknot; this case presents.no interfering, orcomplicated trusts ; but a simple and' direct transmission of interest from one to another, making only a change of parties to the same interest. The assignment to Fairchild could not at all affect the rights which the plaintiff in error had previously acquired; he took, subject to the equities between the original parties: it would be in the highest degree unjust, and would render the' Statute of set-off a dead letter, to permit a creditor to deprive his debtor of his right of set-off by á transfer of his demand to third person; the .supreme, court have uniformly taken cogni — 22 — zsince of the assignment of choses in action, to avoid driving; parties into a court of equity. In the case of Andrews v. Becker, (1 Johns. Cas. 411.,) the defendant pleaded a release of the action from the plaintiff on the record; to this there was á replication, stating that the'bond, on which the suit was brought, had been assigned -to Adams & Parish, of which the defendant had notice : this replication was held to be good, and , the interest of the assignees protected : the same principle is recognised and fully established in anumber of subsequent decisions., (Wardell v. Eden, 2 Johns. Cas. 121. S. C. 1 Johns. Rep. 531. Littlefield v. Storey, 3 Johns. Cas. 425.) These decisions are' certainly agreeable to equity and common sense ; but upon • the same principles, and for the same reasons, are we also bound to protect defendants in their right of set-off, acquired before a transfer of interest by the plaintiffs on record. : . ' - To limit the right of set-off to the parties to the records would greatly narrow down the beneficial operation of the statute. The former decisions of the supreme court have been uniformly in favour of extending the benefit of this statute to-the parties in interest, though not parties to the record. In the case of Johnson v. Bloodgood, (1 Johns. Cas. 51.,) the court decided, that they Would'protect the- interest of the 'cestuy que trust against a set-off, which would have been good against the. plaintiff on the récord, had the interest remained in him. The same principle is contained in the ease of Littlefield v. Storey, (3 Johns. Cas. 425.) The case of Ruggles v. Keeler (3 Johns. Cas. 263.) is analogous to the present,; the court, there'permitted the defendant to set- off a demand against one, Walker Lewis, in bar of. the plaintiff’s right of action, on' the ground of 'Mewis*being the party in interest, Ruggles having assigned the de-’ mand to him. - And in the case of Tuttle v. Beebee, (8 Johns. Rep. 152.,) the court permitted the defendant to set' off .bonds,. which had been assigned to him by third persons, against , the: plaintiff. From these decisions, it is manifest that the supreme court, in regulating the right of set-off,- have always had regard to parties in interest, though pot parties to the record1, On the argument in this court, it - was contended, in behalf of the defendants in error, that, being factors of Riley, they had a right to-¿bring the suit in their names, and to, retain in. their own hands,, whatever might be due them from Riley, as having .a legal lien, — 23 — on those demands to satisfy themselves first; and, in support of this principle, they cited Drinkwater v. Goodwin, (Cowper, 255.,) and insisted that the plaintiff could not, therefore, set off, it) this suit, his demand against Riley. It is not necessary to deny that, as factors*, they had a lien on this demand for what Riley might owe them.. To controvert the correctness of the conclusion, that the plaintiff’s right of set-off wás thereby destroyed, let it be conceded, that if Riley had been indebted to them at the time when the goods were purchased, or prior to the time when the plaintiff in error acquired any right of set-off, that their lien would have had the preference of the plaintiff’s set-off; it does not follow that, if such lien did not exist, the plaintiff would still be deprived of a right of set-off. The case of Drihkwater v. Goodwin is not analogous to the present case; there the defendant claimed the benefit Of a payment to. the factor of Drinkwater, and showed .affirmatively that the factor was a creditor, having a lien on the demand in controversy. In this cage it appears affirmatively that the factors have no lien; because, as agents of Riley, they have assigned the demand to Fairchild, for his' use and benefit' alone, and to secure to him the payment of a demand he had against Riley. The assignment, in: this case, must, therefore, be Considered in the same light as one made immediately by Riley to Fairchild, and in which the. defendants in error have no sort of interest whatever.. The next inquiry is, could the plaintiff in error plead his set-off specially in bar of this action; or should he have pleaded the general issue, and given notice of it, as the act directs. The remedy by set-off is a creature of the statute ; it did not exist at common law; the plaintiff in error was bound, therefore, to confine himself to the remedy as appointed by the statute. The supreme court, in the case of Tuttle v. Beebee, before cited, say, that this statute must be liberálly expounded. It is undoubtedly proper, and for the advancement of justice, that it should be so construed ; but there is certainly a wide difference between a liberal construction of a statute* and a total departure from its provisions. A strict construction of the act would limit the right of set-off to the parties to the record; but to answer its benefic ial purposes, it is necessary to extend that right to the parties in interest,, though not parties to the record. Again, the act directs that, where the plaintiff js overpaid, the jury shall find a verdict fof — 24 — the defendant, and certify the amount due from the plaintiff &C. A strict and literal.construction of-this-branch of the statute would produce the difficulty suggested by the Supreme court in their decision of this cause. A liberal construction would permit the defendant to sét off as much as was necessary to prefect himself against the claim of the party in interest, though not to the record ; and yet the. remedy appointed would be pursued, because exactly in the form prescribed by the act.: nor .is there any good reason- to suffer a departure from the form prescribed; it is not at all necessary to promote the ends of justice. This form was undoubtedly appointed to facilitate legal pi’ooefedings, and to disincumber them from the intricacies óf special pleading ; and it affords as ample and perfect relief, as can possibly be had by means of a plea of set-off. If it had not .been intended to confine a party to the form prescribed, the provision Would have been, in the alternative, that lie might plead his set-off specially, Or pleád die general issue,-with notice of it, ' This appears manifest from the consideration that our statute is taken from oue of Géo. II., on this subject, in which'the remedy, by set-off is thus given in the alternative. ■ . In l Saunders, 136., (note 4.,) Sergeant Williams, in speaking of remedies given by statute, says, “ The distinction seems to be this;; where a statute makes unlawful that which was lawful before, and appoints a specific remedy, .that remedy must be pursued, and no other.” And in the case of Miller v. Taylor, (4 Burr. 2406.,) this rule was considered as-applicable to civil cases. , A subsequent section .of the same act, gives to. a party a right to plead as many several matters as lie shall think necessary for his defence ; and .it was' strongly urged, that-a just and liberal constfuctihn of this section gives the right to plead a set-off specially. What was the object of that- section of the . act.? What was-the relief intended to be granted? It was to remove a difficulty which'exis-te'd at commoii law. Before this act,-:a party wás not permitted to plead different defences-tó the, same action. But it is not necessary to permit a set-off to be. pleaded’, spe-óiaHy, to carry The objects of this section into-full and entire effect ; every benefit ín.téñ'ded jo be secured.by it, is- equally attainable by a plea of the general issue with notice; and.because a defendant may now'plead as many matters as he may judge necessary for his defence, it by no meaiis follows that he — 25 — inay also alter a prescribed form. The legislature having thought proper to appoint the mode by which a party shall avail himself of a set-off, and that mode affording a full arid perfect remedy, it would be manifestly wrong to permit a departure from it. But if the plea is good, the replication is so also ; it tenders a full and perfect issue. What is the fact put in issue by the plea? Why, that the plaintiff purchased the .goods of Riley, through Brisban e Brannan, his agents, and that thé plaintiff had a set-off against Riley. Suppose the replication had also negatived the averment, that Riley Was really and ultimately beneficially interested in this suit;, and the cause had been brought to trial before a jury ; and, On the trial, the plaintiff had failed to prove that the goods were sold and'delivered to him by Brisban dr Brannan, Us the agents of Riley, would it have been competent for him to prove that Riley was beneficially inte» rested in any other manner ? Clearly not. The interest of Riley, through Brisban Brannan, is the fact put ori trial by the plea; that fact is fully answered by the. replication, and an issue tendered ; the plaintiff’s demurrer, therefore, was not well taken.. The plaintiff’s last plea is manifestly bad. I will add one reason to those contained in the decision of the supreme court. The act of 1811, which prohibits'a preferential assignment by a debtor, has this exception in it: “ But this proviso shall not extend to any debtor who shall have been imprisoned, impleaded, or prosecuted, as aforesaid, before the passing of this act; nor shall such debtor be required to take that part of the oath which relates to a preference among creditors.’.’ The plaintiff’s plea has no averment, that Riley was not imprisoned, impleaded, or prosecuted, before the passing of the act. If, then, an assignment, under this act, to a bona fide creditor, made by a debtor imprisoned, impleaded, or prosecuted, after the passing of the act,, was void; yet, if such debtor had been imprisoned, impleaded, or prosecuted^ before the act was passed, he had a right, by tlie very, provision of the act, to make a preferential assignment to a bona fide creditor; such assignments were left on the same footing as though this act had never Rad existence. The plea admits that Fairchild was a bona fide creditor; arid, for aught that appears upon the face of this plea, Riley had a just and legal right to make the assignment — 26 — to him. ‘ I am, therefore, of opinion, that the judgment of the supreme court ought to be affirmed. \ Sanford, Senator., Without examining all the questions which learning and! ingenuity have' brought into discussion, in ■ this cause, my mind tests- with satisfaction upon two' points, which are decisive/ Whether'the second plea is good or bad, I think the replica* lion sufficient. The plea alleges,- that Riley was the real vendor Of the goods; this allegation is material ; arid is, indeed, the basis of the:, whole plea, The replication denies that Riley .was the real vendor of the goods; and thus selects a single certain material fact, from the various matters set forth, in the plea, and puts it in issue. The other facts are admitted, this alone being denied. The question, whether Riley was the-real vendor,. or not, appears to me to be a fair and material issue, and one which must determiné tile whole cause. The third plea is bad in substance.' Taking the facts as they .are stated, Fairchild, a creditor, had a right to obtain payment from Riley, his debtor; and Riley had a right to, páy this- creditor, in preference to others. Riley assigned the debt demanded by the suit to Fairchild, who received it in part payment of Riley’s debt to him. The intention oí'Riley tó prefer FtíiVcMd to other creditors, and to apply for his own discharge from- his debts, cannot invalidate this assignment,, or payment.. S.uch a transaction is dearly valid af common- lawj and. is not-impeached by the Statute of the 3d of April, 1811. For these reasons., I am' of opinion, that the determinations of the - supreme court, upon,both demurrers, were correct, and that their judgment ought to be affirmed.- /; This being the unanimous opinion of- the court,-it was-there* upcm.ordered:and adjudged, that the judgment of the supreme court be ..affirmed and further, that the defendants, in error, recover against the plaintiff, their damages, by reason of. the delay of the execution, and also their costs, in defending the writ of error, in- this cause,, tobe taxed, &c.;' and that the record be-remitted, &c. Judgment of affirmance;