McCabe v. Winship

D. Massachusetts

McCabe v. Winship

15 F. Cas. 1224, 17 Nat. Bank. Reg. 113

DecidedDecember 15, 1877

StatusPublished

This text of 15 F. Cas. 1224 (McCabe v. Winship) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCabe v. Winship, 15 F. Cas. 1224, 17 Nat. Bank. Reg. 113 (D. Mass. 1877).

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Opinion

NELSON, District Judge.

Where the defendant could waive the tort, and sue for the value of goods converted, he can plead a set-off to an action ex contractu. The bank-rppt law recognizes such a claim, which is provable, section 19, Bankruptcy Act [of 1867 (14 Stat. 525)]; and the value of the property is the measure of damages, and is as certain as in any action to recover for the non-payment of a debt. As stated by Mason, Senator, in Butts v. Collins, 13 Wend. 139, the rule is quite general that a demand sounding in tort cannot be set off to a demand in contract; but it is equally true that in a variety of cases there is an election of actions, and the tort can be waived; and it is the better opinion at this day, in such cases a set-off will be allowed. The rule is this: where the set-off is founded in a duty which the plaintiff owes the defendant, as, for instance, the duty to deliver property as bailee, the wrongful act can be waived anda set-off is proper; so in all cases where a price or value is set upon the thing in which the offence is committed; but where the cause of action is a tort (“supposed to be by force against the' public peace”), then the wrongful act cannot be waived — instance, actions for assault, false imprisonment, nuisance, etc. To forbid [1225]*1225an election of .actions and set-off, “the injury must he of that kind by which the offender gains nothing at the expense of the sufferer, and damages as a reparation for the injury must be assessed by estimates and opinion of the jury.” In this case the bankrupt was in duty bound to deliver the wheat when demanded. and a set-off was proper.

[See Case No. 8,667.]

Dixon. C. J.,

reached the same conclusion in an able opinion (33 Wis. COO), and referring to the note of Mr. Hill in the report of Putnam v. Wise, 1 Hill, 234, concurs in the views there expressed. The doctrine of set-off as allowed in this case was recognized by the U. S. supreme court (Allen v. U. S., 17 Wall [84 U. S.] 207), and by Walworth, Ch., in a very forcible opinion (6 Paige, 227). An examination of the following authorities is profitable: 1 Cowp. 372, 491; 1 Taunt. 112; 3 Taunt 274; 5 Taunt. 56; 8 Taunt. 21; 3 Term R. 560; 15 Wend. 58; 1 Hill, 234, note; 6 Paige, 227; 13 Wend. 156; 33 Wis. 600.

Motion denied.

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NELSON, District Judge.

Where the defendant could waive the tort, and sue for the value of goods converted, he can plead a set-off to an action ex contractu. The bank-rppt law recognizes such a claim, which is provable, section 19, Bankruptcy Act [of 1867 (14 Stat. 525)]; and the value of the property is the measure of damages, and is as certain as in any action to recover for the non-payment of a debt. As stated by Mason, Senator, in Butts v. Collins, 13 Wend. 139, the rule is quite general that a demand sounding in tort cannot be set off to a demand in contract; but it is equally true that in a variety of cases there is an election of actions, and the tort can be waived; and it is the better opinion at this day, in such cases a set-off will be allowed. The rule is this: where the set-off is founded in a duty which the plaintiff owes the defendant, as, for instance, the duty to deliver property as bailee, the wrongful act can be waived anda set-off is proper; so in all cases where a price or value is set upon the thing in which the offence is committed; but where the cause of action is a tort (“supposed to be by force against the' public peace”), then the wrongful act cannot be waived — instance, actions for assault, false imprisonment, nuisance, etc. To forbid [1225]*1225an election of .actions and set-off, “the injury must he of that kind by which the offender gains nothing at the expense of the sufferer, and damages as a reparation for the injury must be assessed by estimates and opinion of the jury.” In this case the bankrupt was in duty bound to deliver the wheat when demanded. and a set-off was proper.

[See Case No. 8,667.]

Dixon. C. J.,

reached the same conclusion in an able opinion (33 Wis. COO), and referring to the note of Mr. Hill in the report of Putnam v. Wise, 1 Hill, 234, concurs in the views there expressed. The doctrine of set-off as allowed in this case was recognized by the U. S. supreme court (Allen v. U. S., 17 Wall [84 U. S.] 207), and by Walworth, Ch., in a very forcible opinion (6 Paige, 227). An examination of the following authorities is profitable: 1 Cowp. 372, 491; 1 Taunt. 112; 3 Taunt 274; 5 Taunt. 56; 8 Taunt. 21; 3 Term R. 560; 15 Wend. 58; 1 Hill, 234, note; 6 Paige, 227; 13 Wend. 156; 33 Wis. 600.

Motion denied.

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15 F. Cas. 1224, 17 Nat. Bank. Reg. 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccabe-v-winship-mad-1877.

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