Berens v. Ker

Taliaferro, J. This suit is brought via ordinaria on a promissory note, secured by mortgage executed before a notary and two witnesses. [97] This aet contains the common clause inserted in mortgages given to secure loans of money, stipulating that the debtor on failure to make prompt payment shall pay ñve per cent on the amount sued for as attorney’s fees for collection as well as all legal costs that may accrue. The act contains a confession of judgment by the debtor, who also renounces the benefit of appraisement in the event of a sale of the property, and consents that it be sold for cash to the highest bidder without appraisement. The note is for the sum of $3500, dated May 18, 1870, and made payable one year after date, with eight per cent interest per annum from maturity. The defendant sets up against this claim the plea of compensation, averring, that plaintiff owes him for professional services as an attorney and counselor-at-law rendered in various eases during the years 1870, 1871,1872, and 1873, the sum of $5085, and he reconvenes for the sum of $1585 as the balance due Mm for professional services. The court a qua rendered judgment in favor of the plaintiff for th'e amount claimed, with recognition of the plaintiff’s mortgage rights and an order to enforce them against the property mortgaged. The decree reserved to the defendant the right to proceed against tho plaintiff in a separate action on the claims set up by defendant in Ms plea of compensation. From this judgment the defendant appeals. The bill of exceptions taken by the plaintiff we deem it unimportant to pass upon. The prescription of three years was pleaded on the part of the plaintiff against all the defendant’s claims. ; We think the judgment was properly rendered. It was clearly incompetent for the defendant to set np in compensation against the note sued on the unliquidated claims alleged to bo fdr services rendered as an attorney. Civil Code 2209. : Judgment affirmed. Rehearing refused.