Carpenter v. Butterfield. not compulsory on a party to set off his demand. He has a right, if he chooses, to 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 suffi cient, 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 maintained, but is never allowed to work an injury or prejudice to any party.(b) For this reason, the real time of suing out (b) 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 thereon. (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.) Carpenter v. Butterfield. in justice and sound legal policy, we ought not to [*151] abandon *the fiction, and consider the suing out of the process as the real commencement of the action. The plaintiff here appeared in the character of a fair creditor. The defendant was justly indebted to him. To recover his debt, he commenced this action, and the debtor, aware of the process, concealed himself to avoid the service; and afterwards, to gain an advantage, and defeat the plaintiff of his action, he purchased the note in question, in order to constitute a set-off, and then submitted to the process. At what time the note became due does not appear. It being negotiable, and in circulation, the plaintiff could not know in whose hands to find it, unless it was presented for payment. It does not appear to have been presented, and the defendant kept it till the plaintiff declared in the action, and then pleaded it, by way of set-off, and contends that, by a fiction of law, he must succeed and charge the plaintiff with the costs of an action, justly and fairly commenced. It may often happen that a note, before it becomes due, may be thus purchased and kept for this purpose; and by a little artifice, every merchant may, in this way, be exposed to be defeated, in a suit rightfully commenced, and improperly subjected, at least, to the payment of costs. I think the fiction carried to this extent, instead of being subservient to the ends of justice, and supporting a fair course of dealing, would tend to injustice, and open a door for practices which ought not to be encouraged. Whatever, therefore, may be the fiction, with respect to the commencement of a suit by bill, in this court, I think this is one of those cases in which fair dealing and legal policy require that we should reject the fiction, and adopt the time of suing out the first process, as the actual commencement of the suit. 2. The second ground taken by the defendant is, that the defence contained in every plea relates to the time of pleading, Carpenter v. Butterfield. and that it is sufficient if it then exists. This position, in many cases, is true; but it is not universally so. It Still it may, in many cases, time subsequent to the beginthe very time of pleading; as some act done by the plaintiff is also true that actio non, &c. as stated by Lord Mans- [*152] field, in the cases of Sullivan v. Montague, (Doug. 108,) and Reynolds v. Beering, (3 Term Rep. 188, note,) goes, in all cases, to the very time of pleading, and not to the commencement of the action; but this introductory form of plerding is by no means decisive of the question. It is a mere allegation that the plaintiff ought not then to maintain his action; but the cause or reason why he ought not to maintain it, may, consistently with this allegation, have arisen before or after the commencement of the action; and the subsequent form of the plea shows that, in general, it refers to a time antecedent to the bringing of the action, ante exhibitionem billæ, or ante impetrationem brevis, and not to the precise time of pleading, or to any period after the commencement of the action. properly refer to and allege a ning of the action, and up to where the defence arises upon himself, as a release made, or a payment accepted by him, subsequent to the commencement of the suit. In those and in similar cases, the defendant may, in his plea, state the real time, although after the action brought, and the plea will be good; or if the matter of his defence arise snbsequent to his plea, he may plead it puis darrien continuance. But in all those cases, the matter of his defence must arise from some act of the plaintiff, done in relation to the suit or to the claim on which his suit is founded. I am sensible that the case of Reynolds v. Beering, stands in opposition to this distinction. A judgment obtained by the defendant against the plaintiff, after the action commenced, was there permitted to be pleaded, by way of set-off. But that case was overruled by the court, in Evans v. Prosser, and Mr. VOL. III. 25 |