Robinson v. Houston

7 Del. 62

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

By the Court:

The judgment offered in evidence under the plea of set off, is against Joshua Ingraham and Thomas Robinson, and in the life time of the former, it could not have been so pleaded to this action of sci. fa. by Robinson alone; but for another reason, because the two judgments would not then have been mutual, or between the same parties. Ingraham, however, is dead, and Robinson is the sole survivor in it. He is therefore primarily and singly liable for the whole amount of the judgment, and the only party against whom process can issue upon it to enforce the collection of it. It has been held and decided that the surviving member of a partnership may plead as a set off a debt due to him as such, in a suit against him individually, and also that a debt due from him as the surviving member of a firm, may be pleaded as a set off, to a suit by him in his own right; and so far as this question is concerned, we think this judgment originally recovered against Ingraham and the plaintiff, may now be set off by the defendants in this suit to the judgment of the plaintiff against the administrators of Burton on which it is founded.

But as to the question whether the judgment now offered in evidence under the plea of set off by the defendant was covered by the terms of the rule of reference and included and embraced in the report of the referees in the amicable action referred to, we apprehend on looking into the books, there will be found to be some discrepancy between the older and more recent decisions in England on the subject. In the earlier decisions it was held that on a submission to arbitration of all matters at variance, or in controversy between the parties, it was competent to show in a subsequent action between them, that a certain matter then in dispute between them, was not included in the submission, nor brought before the arbitrators nor embraced in the award; whilst the later decisions appear to recognize the principle that an award regularly made under the submission, is conclusive of all matters embraced within the terms and scope of the submission, even though the special matter referred to, was not in fact brought to the notice, or attention of the arbitrators. Our impression, however, is that the practice in this State, has been in accordance with the former decisions, and that it has been usual to allow such matters to be enquired into, notwithstanding by the general terms of the submission, they would be included in them and would prima facie be covered by the award, or report upon it. It will be observed that we are now speaking as to the effect of this evidence when admitted for the purpose for which it has been offered; and not as to its competency, or admissibility. For as a judgment of record between the same parties substantially who are now parties to this action, as'we have before shown it to he since the death of Ingraham, the other defendant in it, it is clearly admissible as such, in evidence in this suit; the record of a former suit between the same parties always being admissible in evidence, even though it may prove nothing pertinent to the subject matter of the subsequent action.

The counsel for the defendants then stated to the Court that he should claim the privilege under the recent act of assembly, of calling to the stand and examinening as a witness, the plaintiff himself to prove that the judgment in question was not understood to be embraced in the reference and was not submitted to the referees in the amicable action referred to; which the Court said he had a right to do; and swearing the plaintiff', he proved that it was submitted to the referees, and was considered by them in the amicable action.

The plaintiff had a verdict.