Harris ex rel. Barnes v. Hanna

1 Tapp. Rep. 41

• Court: Harrison County Court of Common Pleas
• Decided: May 15, 1816
• Status: Published

Opinion

President.

The “act allowing mutual debts and demands to be set-off; and concerning tenders,” authorises the defendants in suits brought on “ any, bond, bill, note, promise or account,” to plead the general issue, and at the same time to give notice in writing to the plaintiff, or his attorney, oí any debt, contract, or demand, against the plaintiff, which, &c.; the general issue has been plead, and notice of set-off given; the terms, debt, contract, and demand, are of known and settled signification in law. When the statute law uses legal terms, we must give to them the correct legal construction ; to do otherwise would be to repeal the statute. The matter here offered to be set off, is, in legal language, a demand. It comes, then, within the letter and obvious meaning of the law. That demands may include unliquidated damages — that a set-off of every thing included in the term, may lead to difficulties in trials, is an objection to the law itself, to be urged to tbe legislature, but not here, unless it can be shown that we have the power to affix a meaning to the word demand, hitherto unknown.

The English statute of set-off, refers only to mutual debts; damages are not debts; therefore the English courts have refused to allow them to be set-off; but unliquidated damages are demands; the English decisions will not, therefore, apply; they have no bearing on the question. 1 am clearly of opinion, that every thing which is, in law, a demand, may be the subject matter of a set-off, by our statute; and, although this construction may occasion difficulties and embarrassments in trials, inasmuch as it may require a number of distinct issues to be submitted to a jury at once, the legislative power is alone competent to remedy the evil.

The “ act making certain instruments of writing negotiable,” enacts, that all bonds, &c., “ shall be negotiable by endorsement thereon, so as absolutely to transfer and vest the property thereof in each and every endorsee,” and “ every endorsee may in his own name institute and maintain an action for the recovery of the money due thereon, against the person who signed such' bond,” &c. This obligation was assigned, by endorsement thereon, before it became due; and such endorsement did, on its date, absolutely transfer and vest in Barnes, the endorsee, the property thereof. The property being thus vested in Barnes, he might sue in his own name, or he might sue in Harris’s name. Suppose he sued in Harris’s name, would this manner of sueing divest the property ? I think not. Nothing but an endorsement to Harris, or a complete annulling of the first endorsement, (if even that would do it) would divest the property in the note.

The statute further provides, “that if any such bond, &c. shall be endorsed before the day on which the same is made payable, and the endorsee shall institute an action thereon, the defendant may give in evidence at the trial, any money actually paid on said bond, &c. before the same was indorsed or assigned to the plaintiff, on proving that the plaintiff had notice of the said payment before such endorsement was made and accepted.” The case supposed by this part of the law, is one where the endorsee brings an action in his own name. If he uses the name of the payee of the note, as plaintiff in the action, as in this case. I think that, by so doing, he lets in a set-off of all payments made previous to the endorsement, without notice to himself. So much may be set-off in this case.

Upon hearing this opinion, the parties settled the amount of the verdict.