Phelps v. Bulkeley

[19] The opinion of the court was delivered by Hall, J. It was held in Tyler v. Lathrop, 5 Vt. 170, that audita querela might be sustained, where a justice improperly denied an appeal; and the question in this case is, whether the action described in the writ was appealable. The action, being founded on a note for the sum of $15,00, was not of itself appealable; but it would become so, if the defendant pleaded in offset any bona fide demand, exceeding the sum of $10,00. Rev. Stat. chap. 26, sec 51..- Does it appear from the writ of audita querela, which is demurred to, that such a demand was pleaded in offset? I think not. A plea in offset by a defendant must be founded on an alleged indebtedness of the plaintiff to the defendant, and must be such an indebtedness, as would entitle the defendant to maintain a distinct action for it against the plaintiff. Pleas in offset are allowed, to prevent the necessity of cross actions between the same parties. Any defence to a suit, which merely goes to show, that the plaintiff’s demand is unjust, inequitable, has been paid, or that, for any other reason, the plaintiff ought not to recover upon it, is matter connected with the original claim, and not a plea in offset. A plea in offset is founded on the supposition, that the plaintiff has a good cause of action against the defendant, but that, the defendant having also another good cause of action against the plaintiff, it is but just that both should be settled in the same suit, the one set off against the other, and the balance, only, allowed to be recovered. I cannot determine, from the facts set forth in the audita querela, that Phelps, the defendant before the justice, pretended to have any cause of action against Bulkeley, the plaintiff in that suit. Bulkeley had sued him on a note payable to one Carpenter, or bearer. Phelps presented a fifty dollar note against Carpenter, which he had purchased, and offered to prove certain facts, which he claimed would, as matter of law, be sufficient to prevent the plaintiff from recovering upon the note in suit. I can make nothing more than’this of the proceedings before the justice. Phelps did not pretend to have any demand against Bulkeley, but merely claimed, that his demand against Carpenter should prevent Bulkeley from recovering in his suit. Phelps’ claim was clearly mere matter of defence to the orig [20] inal cause of action, and not a distinct claim against the plaintiff, which could be pleaded in offset. Under a former statute of this state, not now in force, the maker of a note, in an action brought by the bearer, was allowed to plead in offset a demand against the payee; but such plea cannot now be made. Adams v. Bliss, 16 Vt. 39. Pleas in offset are only allowed between the actual parties to the suit. Rev. Stat. chap. 34, §1. . The defendant before the justice not having pleaded a bona fide demand in offset, the suit was not appealable, and the judgment of the county court must therefore be reversed, and judgment rendered for the defendant,