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Carpenter v. Butterfield.

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the defendant can set off, must be an existing demand, in the defendant, at the time when the plaintiff's suit is commenced. In the present case, the note was purchased by the desendant, after he knew the writ was in the hands of the sheriff, and an attempt had been made to serve it, and he purchased the note for the express purpose of (*147] setting it off against the plaintiff's demand. It was an act, therefore, not done in good faith, and ought not to be tolerated farther than the strict rules of law will require. The plaintiff, when he commenced his suit, had a good cause of action, and a legal and undeniable right to recover, and to suffer the defendant to defeat that right, by any subsequent collateral demand, would subject the plaintiff to the payment of costs, for doing an act which he had a legal right to do. If the plaintiff should, by his own act, after the commencement of the suit, furnish the defendant with a good defence, he may plead it puis darrein continuance. Though it would defeat the recovery, and subject the plaintiff to the payment of costs, yet that would be a damage arising from his own act, pending the suit, and knowing, at the same time, that it might affect that particular action. As if he should give a release or discharge, or accept a direct payment of his demand. A plaintiff cannot give in evidence, a demand arising after the commencement of his suit. Pleas of set-off are in the nature of cross actions. Wherever there is a plea of payment, the time alleged, in all the precedents of the books, and I believe, in universal practice, is, " that before the exhibition of the bill, or commencement of the suit, the defendant paid,” &c. If the defendant, on the trial, should offer in evidence, a demand that accrued after the time laid in his plea, it would, in my opinion, be inadmissible; because, the judgment could not be pleaded in bar to an action afterwards commenced, for the same demand, as it would appear to have originated after the day laid in the record. No possible injury can result to the defendant from adopting,

Carpenter v. Butterfield.

as the general rule on this subject, the one that I have laid down. He does not lose his demand; and in the case now before the court, it is stated that the defendant paid a full and valuable consideration for this note; he, therefore, could

have had no other object in view, than to subject the (*148] plaintiff to the payment of costs. *It appears to me,

that to adopt the rule contended for by the defendant's counsel, would greatly embarrass the circulation of this species of paper, as it would be unsafe for any man to commence an action against another, while he had any paper afloat that would become due, at any time before it should be necessary for the defendant to plead. If the defendant could, in any way, have availed himself of this note, as a set-off, he ought to have laid a day in the plea, subsequent to the time when the note was endorsed to him; and such a plea, on demurrer, would have been bad. The case of Evans v. Prosser (3 Term Rep. 186,) is in point, and decides the whole question. In that case, one of the pleas was, “ that the plaintiff, at the time of the plea pleaded, was indebted," &c. and, on demurrer, the court determined that the plea was bad ; that it ought to allege that the plaintiff, at the commencement of the suit, was indebted, &c. In that case, Mr. Justice Buller takes notice of the case of Reynolds v. Burling, (Doug. 112, note,) in which it was said, that actio non goes to the time of plea pleaded, and not to the commencement of the suit, and denies that such a doctrine is maintainable. The judgment of the court in Evans v. Prosser, clearly overrules the decision in Reynolds v. Burling, and also in Sullivan v. Montague, (Doug. 106,) so far as that case bears on the present question, and must, in my judgment, be considered as overturning all prior cases which appear to countenance a contrary doctrine. It may be said that the statute of set-off ought to receive a liberal construction, because it tends to prevent multiplicity of suits: the argument has weight. Still it is to be observed, that it is

Carpenter v. Butterfield.

not compulsory on a party to set off his demand. He has a right, if he chooses, lo waive a set-off and resort to his action ; and, by this means, to defeat all the beneficial effects of the statute, in this respect. This statute ought not to receive a construction which tends, in its consequences, to countenance fraud and unfair practices, or to *ren- (*149) der uncertain the rights and remedies of individuals. Upon the whole, therefore, I am of opinion, that a note endorsed to a defendant, after the commencement of a suit against him, (and, especially, when obtained for the express purpose of defeating the action, as in the present case,) ought not to be admitted as a set-off; and that a new trial ought not to be granted.

RADCLIFF, J. The defence upon the note purchased, I understand, rests on two grounds.

1. That in this case, and in general, the ordinary proceedings in this court are analogous to the proceedings by bill, in the K. B. in England; that the capias is a process to bring in the defendants merely; that the bill and declaration are, in contemplation of law, the same, and the actual filing of the declaration, and not the time of issuing the capias, is the commencement of the suit.

2. That in every case, the defence in the plea relates to the time of pleading, that the general form of pleading " actio non,&c. shows that it goes to that time only, and not to the commencement of the suit, and that, therefore, it is sufficient, if the defence existed at the time of pleading.

In relation to the first ground of defence, it is admitted, that the general practice of this court is borrowed from the K. B. although, in many respects, alterations, according to circumstances, have been gradually introduced. Our proceedings are, however, ordinarily supposed to be by bill, but the process thereon by capias here, and by bill of Middlesex in England, are not the same. The capias is generally thee first process here, in every county, and runs in the name of

Carpenter v. Butterfield.

the people, and bears a teste. The bill of Middlesex is a mere order or command of the court, and has no teste, and is confined to the county in which the court sits. In every other country a latitat is the first process, grounded on a

supposed previous return of a bill of Middlesex. Ad(*150) mitting our practice, in general, to *be analogous to

that of the K. B. it must also be admitted that the modern English authorities consider the declaration as the exhibition of the bill, and the commencement of the suit. Still, I think it would not be difficult to show that these authorities are not strictly correct, and have confounded the original bill, which used to be filed, and which is yet supposed to be filed, before the issuing of any process, with the subsequent declaration in the cause. But I conceive it unnecessary to examine this point, because those very authorities admit, and I take the law to be settled, that, for every material purpose, the time of taking out the first process is to be considered as the actual commencement of the suit. With regard to legal fictions, it is a general maxim, that in fictione juris semper subsistit equitas. Wherever it may contribute to the advancement of justice, the fiction is maintailied, but is never allowed to work an injury or prejudice to any party.(6) For this reason, the real time of suing out

(6) Fictio juris is defined to be a legal assumption that a thing is true which is either not true or which is as probably false as true ; (Bell's Dict. and Dig. of Scotch Law, p. 427 ;) and the rule on this subject is, that the court will not endure that a mere form or fiction of law, introduced for the sake of justice, should work a wrong contrary to the real truth and substance of the thing. (Per Lord Mansfield, C. J., Johnson v. Smith, 2 Burr. 950. See 10 Rep. 40; id. 89. As to fictions in pleading, see Steph. Plead. 5th ed. 489, 490.) So, by fiction of law, all judgments were formerly supposed to be recovered in term, and to relate to the first day of the term, but in practice judgments were frequently signed in vacation ; and it was held, that where the purposes of justice required that the true time when the judgment was obtained should be made to appear, a party might show it by averment in Carpenter v. Butterfield.

the bill of Middlesex or latitat, in England, and the capias, here, when it becomes material to the rights of either party, is regarded as the actual commencement of the suit. Thus to a plea of the statute of limitations, the plaintiff may reply the actual time of suing out his bill, or latitat, to show that his action was commenced within the period prescribed by the statute. So on a plea of tender, and in suits by the assignees of bankrupts, and in all those cases where the right of action is limited to a short period, both parties have an equal advantage to show the truth as it substantially is; and the actual time of suing out the process is regarded as the real commencement of the suit, in opposition to the general fiction of law. This deviation from legal fictions, is founded on a principle which from its nature, cannot be confined to particular cases, and must be applicable, whenever it becomes essential to the rights of either party. Testing the present case by this principle, the real question is, whether,

pleading; and it was observed generally, that, wherever a fiction of law works injustice, and the facts, which by fiction are supposed to exist, are inconsistent with the real facts, a court of law ought to look to the real facts. (Lyttleton v. Cross, 3 B. & C. 317, 325.) Nor will a legal fiction be raised so as to operate to the detriment of any person, as in destruction of a lawful vested estate, for fictio legis inique operatur alicui damnum vel injuriam. (3 Rep. 36 ; per Cur. ; Waring v. Dewbury, Gilb. Eq. R. 23.) The law does not love that rights should be destroyed, but, on the contrary, for the supporting of them invents notions and fictions. (Per Gould, J., Cage v. Acton, 1 Ld. Raym. 516, 517.) In Maryland, a junior grant of land will not relate to an elder certificate, where the purchase money has not been paid before another person has returned a certificate and compounded thereun. (Hath v. Polk, 1 Har. & M'Hen. 363.) In Maryland, a grant was held not to relate back to the certificate of survey, so as to overreach a prior grant for the same land, where the certificate had not been returned, nor the composition paid, within the time limited by the rules of the land-office. (Beall v. Beall, 1 Har. & J. 346.) In Maryland, to entitle a party to the benefit of the relation of his grant to the certificate, it is incumbent on him to show an equity; and producing copies, under seal, of the warrant, certificate, and grant, is not sufficient to entitle him to such benefit. (Hammond v. Warfield, 2 ib. 151.)

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