Roig v. Tim
| Decision Date | 02 April 1883 |
| Citation | 103 Pa. 115 |
| Parties | Roig <I>versus</I> Tim. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, TRUNKEY, STERRETT and GREEN, JJ. PAXSON and CLARK, JJ., absent
ERROR to the Court of Common Pleas No. 4, of Philadelphia county: Of January Term 1883, No. 206.
Mayer Sulzberger (with him Walter J. Budd), for the plaintiff in error.—The garnishee was entitled to a legal set-off for the amount of the note, which had fallen due and been paid on September 6th 1880, while the plaintiff did not recover final judgment against the defendant until September 1st 1881. Although the attachment was served June 1880, yet the opening of the confessed judgment left it an open question to be determined by a jury, whether the plaintiff had any claim against the defendant. Moreover, the garnishee's liability on the note was fixed long before the service of the attachment: Bare v. Hertzler, 16 Leg. Intell. 108. The rule in Bosler v. The Bank, 4 Barr 32, applies only in cases of debtor and creditor, not of principal and surety. In the latter cases the rule in Beaver v. Beaver, 11 Harris 167, applies: Garrison v. Paul, 1 Penny. 383. In any case the garnishee was entitled to an equitable set-off, because Ertheiler was insolvent and the note had been in effect applied by him as payment pro tanto: Waterman on Set-off, §§ 17, 449, 450; Dougherty v. Bank, 12 Norris 227; Mann v. Dungan, 11 S. & R. 75; Patten v. Wilson, 10 Casey 299. The words "lawful claims" and "debts due" to the defendant in § 22 of the act of 1836 include claims and debts payable in futuro: Fulweiler v. Hughes, 5 Harris 440; Kieffer v. Ehler, 6 Harris 388; Hill v. Kroft, 5 Casey 186; Day v. Zimmermann, 18 P. F. S. 72.
Thomas J. Diehl, for the defendant in error.—From the time of the service of an attachment the attaching creditor stands in the shoes of the garnishee. At the time of this attachment the debt due by Roig to Ertheiler was due and demandable; if payment had been denied, a right of action existed at once. On the contrary, if the note was not due, there was no present demand or right of action on it. Even if Ertheiler was ever liable to Roig on it, it could only be after its maturity and payment by Roig. Such being the case it could not have been set-off in any suit by Ertheiler against Roig; there was no cause of action, and it was on this ground that the learned judge excluded it as a set-off, if it was an accommodation note: Reed v. Penrose's E...
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