Hugg v. Brown

Rennedy, J., delivei’ed the opinion of the court. The errors assigned, taking exception to the writ of scire facias, do not appear to be sustained in point of fact, and therefore require no further notice. The circumstance of its being stated to be for the use of D. W. Hulings alone, when, by the assignment filed in the prothonotary’s office, of the judgment, it appears to have been assigned to him only in part, is an immaterial matter. The first two errors, which relate to the rendition of the judgment by the District Court in favour of the plaintiffs below against the plaintiffs in error, who were the defendants there, present the same question, and are the only.errors which demand our particular attention as having any thing in them. The court undertook to render or direct the judgment to be entered in this case, under the act of 20th of March, 1835, providing, inter alia, that “in all actions of scire facias, on judgments, &c., it shall be lawful for the plaintiff/on or at any time after the third Saturday succeeding the several return days thereinbefore designated, on motion to enter a judgment by default, notwithstanding an appearance by attorney, unless the defendant should previously have filed an affidavit of defence, stating therein the nature and character of the same.” An affidavit of defence, made by one of the defendants below, was filed here in due time ; but the plaintiffs excepted to the sufficiency of it, because, as they [473] alleged, it did not contain “ the nature and character” of a defence sufficient in either law or equity to prevent them from recovering the amount of their judgment upon which the scire facias was sued out. And the court being of this opinion, permitted the plaintiffs to enter judgment as if no affidavit had been filed. The court, according to the construction put on the act, by this court, in West v. Simmons, (2 Whart. Rep. 261,) acted rightly in doing so, provided the affidavit filed did not contain a statement of the “ nature and character” of a defence sufficient to bar the recovery of the plaintiff’s demand, in part at least, if not in whole. The only question, therefore, to be decided, is, does the affidavit set out a good defence in the manner and form required by the act of assembly made in this behalf. The affidavit contains, in the first place, an allegation that a certain portion of the claim made by the plaintiffs in the scire facias, nearly five-sixths thereof, was extinguished by a defalcation claimed by the firm of Keckler & Forney, for whose use in part, as it is alleged, the scire facias has been sued out here, and as would appear to be the fact, by an assignment of the plaintiffs named on the record, to them, which is filed with the papers in this case, in a suit brought by the defendants below against the said Keckler & Forney, at Lewistown, Pennsylvania; and that this latter suit was-tried before arbitrators, who allowed the defalcation so claimed. But then it is also stated in the affidavit that the defendants below in this action appealed from the award of the arbitrators in that suit, and that that appeal is still depending. This, therefore, would seem to preclude them from setting up the defalcation, allowed by the decision of the arbitrators, as a defence in this action, as it would in effect be withdrawing their appeal, which by the first section of the act of the 28th of March, 1820, cannot be done without the written consent of the adverse party first had and obtained. See Good v. Good, (5 Watts, 117.) The affidavit of defence, in the second place, contains an allegation that the said Keckler & Forney have sued out a writ of foreign attachment, at Lewistown, for their use, founded upon the judgment, upon which the scire facias is sued out here, against the said Hugg and Bell, which is still depending and undetermined. We can perceive no sufficient reason why such writ of foreign attachment should preclude the said Keckler & Forney from proceeding at the same time by scire facias upon the same judgment to recover the amount thereof. It may be that the proceeding by foreign attachment is irregular, and if so, relief may be had in the court whence it issued; but it does not appear to be a good ground of defence here. In the third place, however, the affidavit does, as we conceive, set forth the nature and character of a defence, which, if made out-on the trial of the cause, may bar the plaintiffs’ right to a recovery. As to this third ground of defence, the statement in the affidavit is, [474] in effect, that the said 'Keckler & Forney are entitled to three hundred and five dollars of the judgment, upon which the scire facias here is sued out, as appears by an assignment thereof in writing, made by the plaintiffs named in the record of the said judgment; and that under the same assignment, David W. Hulings is entitled to the residue of the said judgment. That the said Keckler & Forney are indebted to the defendants in this case, upon their accceptance of the defendants’ draft, drawn at sixty days, on the 20th of March, 1837, for three hundred dollars; which sum, including expenses incurred and the interest accrued on it, exceeds the amount of the said Keckler & Forney’s proportion of the judgment which the defendants claim to have set off against the amount coming to the said Keckler & Forney upon the judgment. And that the said .David W. Hulings is also indebted to the defendants in the sum of nine hundred dollars, an amount exceeding the residue of the judgment, upon his acceptance of a draught in their favour’, which they claim to have set off so far as may be necessary to extinguish and satisfy the said David W. Hulings’s claim upon the judgment. Now, if it be practicable to adjust and liquidate these mutual claims in case they be found to exist, by setting one off against the other, it ought to be done, because it will avoid circuity of action and put a more speedy end to litigation, which would necessarily be attended with additional expense and loss of time to the parties, and may possibly be the means of effecting justice betwee.n them, without loss or sacrifice to either, when it could not be effected in any otheV way. It is no objection to a set-off being allowed, that the party against whom it is claimed to be made, is not the legal owner of the debt, the payment of which he wishes to enforce by action. It is sufficient that he has the equitable right to demand and receive it. Neither is it any objection to the set-off’s being allowed, that the party seeking to have it, has only an equitable right to the claim which he wishes to have defalcated from or set off against the plaintiff’s demand. The right to the debt or demand on either side may be either legal or equitable; and it is no objection to a set-off or defalcation being claimed and allowed, provided the parties claiming against each other, claim each in his own right. Murray v. Williamson, (3 Binn. 135.) Wolf v. Beales, (6 S. & R. 244.) It is, therefore, no objection to the set-off or defalcation being allowed in this case, that the parties seeking to enforce the payment of the judgment by scire facias, are only the equitable owners of it, and that the defendants therein are the legal owners of the debts or claims which they wish to set off against the judgment. Each party, as it is stated in the affidavit of defence, claims in his own right; and the claims, as therein specified, appear to be mutual and between the same parties. This will be seen fo be the case, by observing that the judgment, as appears by the affidavit of defence and likewise by the assignment therein referred to, has been divided, by the plaintiffs therein on the record, into two [475] parts; one consisting of three hundred and five dollars of the amount thereof, which they have assigned to Keckler & Forney; and the other of the residue, which they have assigned to David W. Hulings; so that from the showing of the affidavit of defence, it appears that Keckler & Forney have a separate and distinct claim from that of David W. Plulings in the judgment against the defendants below; and that David W. Hulings has also a claim therein, separate and distinct from that of Keckler & Forney, against the defendants below: and again, on the other hand, that the defendants below have two several debts owing to them, that is, one from Keckler & Forney and the the other from David W. Plulings, which they claim to set off against the several demands of the assignees, respectively made against them under the judgment. The defendants, therefore, do not claim to set off debts owing to them by the ‘assignees of the judgment, severally, against a joint claim by the latter on the judgment, but _ against their respective claims separately: thus claiming nothing against one, which can possibly affect or prejudice the rights of the other. If it be practicable, then, it seems to be not only expedient, but perfectly just and equitable, that it .should be carried into effect. Now, although the jury, in trying the issue that may be joined in the cause, cannot split the judgment into two parts, by finding two •distinct verdicts, giving to each of the assignees of the judgment, if they should succeed either in whole or in part, their respective proportions of it, yet they can give a general verdict for the whole amount that they shall find to be due thereon, stating in what proportions it shall be levied for the use of the assignees respectively; or, if they should find that only one of the claims under the judgment was satisfied by the plea of set-off on the part'of the defendants, they could state that they found so much for • the plaintiffs, to be levied for the use of Keckler & Forney, or for the mse of David W. Iiulings, accordingly as they should determine it to be in favour of the former or the latter. We therefore think that the judgment, rendered in favour of the plaintiffs below, was erroneous, and that the defendants were entitled to the benefit of a trial by a jury, in order to have their decision on the third and last ground of defence contained in their affidavit. It may be proper, however, to remark here, that if the debt mentioned in the third ground of defence, as owing by Keckler & Forney to the defendants, be the same, for which they have a suit pending in the court at Lewistown, Pennsylvania, on an appeal from the award of arbitrators, which is mentioned in the first part of their affidavit, it cannot be offered by them in this action by way of defence, as a set-off against their claim on the judgment, for the reasons stated above, in noticing the first ground of defence. The judgment is reversed, and a venire de novo awarded. Judgment reversed; and a venire de novo awarded.