Williams v. Crary

5 Cow. 368

Opinion

Curia, per Sutherland,.!.

The demurrer is well taken. The plea is bad both in form and substance. From the conclusion, it seems to be intended as a plea of set-off. In this respect it is bad: because a set-off under our statute, .cannot be specially pleaded; but must be taken advantage of under the general issue, by way of notice. (Alsop v. Caines, 10 John. 399. 13 John. 24.)

There is no right of set-off at common law. It is a remedy given exclusively by statute. The mode in which the statute authorizes parties to avail themselves of it, is by a plea of the general issue, and notice. This mode, therefore must be pursued. The English statutes of set off allow it either to be pleaded, or notice to be given with the general issue. (2 Burr. 820, 4 id. 2214.) Our statute allows only the latter mode,

(a)

But if it could be pleaded, the plea in this case is bad ; because it appears on the face of it, and indeed is expressly averred, that the bond, which is sought to be set off, has been cancelled by the defendant; and the accompanying mortgage satisfied of record. After cancelling the bond, the defendant cannot avail himself of it, by way of set off at law. If it was surrendered through mistake or misapprehension of his right, the defendant’s remedy must be sought in a different way. But here it was cancelled in obedience to the express directions of the testatrix in her will. It is admitted by the plea, that the plaintiff paid the amount which the will directed should be received, in full satisfaction of the bond. ■ It is not a case of set off, therefore, in any form of pleading.

Nor can it be sustained as a plea of. legacy, or bequest in satisfaction of the demand of the plaintiff. It is not pleaded as a legacy. And although it is a general rule, that a legacy given by a debtor to his creditor, which is equal to, or greater than the debt, shall be considered as a satisfaction of it; yet where there are any circumstances in the case to repel the presumption that- such was the intention of the testator, courts have always eagerly seized upon them to prevent the application of the rule. It has never been applied to the case of a debt existing in an open and unliquidated account ; because the testator, in such a case, is not supposed to know how the balance stands, and whether the legatee is his creditor or not.

Here the plaintiff’s demand consists entirely of an unliquidated account for board and lodging, care and diligence, and services rendered, &c.; and the'plea expressly avers, that the testatrix did not know the amount of the plaintiff’s demand, and had no means of ascertaining it, when she made her will. (Toller, 264. 1 P. Wms. 324, 409, note (1) and cases there cited. 2 id. 614. 2 Fonbl. 322, sect. 5, particulariy note (5) 323.)

The pica is also argumentative. It contains no averment on which the plaintiff could have taken issue, which would have presented a material question for trial. It does not allege that the testatrix made a bequest to the plaintiff in satisfaction of his debt. Nor does the plea expressly aver, that such was the intention of the testatrix-in directing tiie plaintiff’s bond to be cancelled upon his paying $1600.

Judgment for the plaintiff.

See Wheeler v. Merchant, ante, 231