Mower v. Reverting Fund Assurance Ass'n

1 Pa. Super. 170, 1896 Pa. Super. LEXIS 143

• Court: Superior Court of Pennsylvania
• Decided: January 20, 1896
• Docket: Appeal, No. 36
• Status: Published

Opinion

Opinion by

Wickham, J.,

Two defenses were presented by the defendant’s affidavit. The first was, that the defendant had held the joint bond of John F. Mower and Catharine E., his wife, for $1,200, on which judgment had been entered before this suit was brought, and that the right existed to set off this judgment against the plaintiff’s claim.

As the proposed set-off does not fall within any recognized exception to the well known general rule, that a joint debt cannot be set off against one of a separate nature, it was properly disallowed by the court below: 8 Bacon’s Abr. (Am. ed. 1845, notes by Bouvier) 646-649; 1 Lindley on Part. (Am. ed. by Rapalje) 498; 1 T. & H. Prac. (5th ed.) 299; McDowell v. Tyson et al., 14 S. & R. 299. “ When the defendant, sued by a single plaintiff, sets off a debt claimed to be due him jointly by the plaintiff and a third party, in this case the set-off cannot be permitted as the defendant could not have maintained a suit against the plaintiff, on the debt: ” 2 Whart. on Contracts, sec. 1021.

The nature of a debt is not changed by reducing it to judgment: Bell v. Cowgell, 1 Ash. 7; Baskerville v. Brown, 2 Burr. 1229.

The second defense is based on a provision in the policy sued on, forbidding the assignment of the policy without the consent of the secretary of the association. This defense is unavailable for two reasons: first, because the legal plaintiff is the beneficiary, John F. Mower. It does not concern the defendant that the suit is marked to use. Second, the claim sued for had fully matured before the assignment to Samuel L. Mower. It therefore became a debt and was no longer subject to the restriction in the policy: Insurance Co. v. Dunham, 117 Pa. 460.

Judgment affirmed