Heath v. Doyle

• Decision Date: 26 April 1893
• Citation: 27 A. 333,18 R.I. 252
• Parties: HEATH v. DOYLE.
• Court: Rhode Island Supreme Court

27 A. 333

18 R.I. 252

HEATH

v. DOYLE.

Supreme Court of Rhode Island.

April 26, 1893.

Assumpsit by Mark A. Heath against Louis J. Doyle. Judgment for defendant.

Amasa M. Baton, for plaintiff.

Irving Champlin, for defendant.

MATTESON, C. J. The first matter for consideration is the plaintiff's motion to strike out the defendant's plea of the statute of limitations. The plea was filed by leave of the court, on motion of the defendant, after the parties had been duly heard. It would be a gross injustice to permit the plaintiff to put in evidence causes of action which accrued to him against the defendant more than six years prior to the bringing of the suit, and at the same time limit the defendant to the proof, under his plea in set-off, of his causes of action against the plaintiff which accrued to him during that period. The plaintiff, by his seventh replication to the defendant's third plea, being the second plea in set-off, having set up the statute of limitations in bar to the causes of action set forth in the plea, the defendant ought also to be permitted to plead the statute of limitations to the causes of action sued for by the plaintiff. We see no reason for granting the motion.

We are of the opinion that the replications to the second plea in set-off numbered 2, 3, 4, and 5, are demurrable.

The second replication is that the plaintiff ought not to be barred from maintaining his action, because the supposed debts or causes of action in the plea mentioned did not, nor did either of them, accrue to the defendant within "six years next before the pleading thereof." In support of his demurrer, the defendant contends that the replication is bad, because the declaration and plea cover the same period of time, and hence the replication should be that the causes of action did not accrue to the defendant at any time within six years next before the commencement of the suit We think the defendant's contention is correct. Pub. St. R. I. c. 212, § 14, provides that if any defendant shall have a demand on the plaintiff for any sum liquidated, or for one which may be ascertained by calculation, and which is founded on a Judgment, or on an account, or any contract, whether express or implied, and whether with or without a seal, and which existed at the time of the commencement of the action, and then belonged to the defendant in his own right, and for which he might maintain an action in his own name, he may set off the same in any action founded on any demand which could itself be set off. This statute, it will be observed, expressly confers on a defendant the right to set off claims of the characters specified which existed at the time of the commencement of the action; but, apart from this statutory provision, the defendant's contention is amply supported by authority at common law. In 2 Saund. Pl. & Ev. 886, 887, quoted in Stillwell v. Bertrand, 22 Ark. 375, 378, it is said: "If the plaintiff rely on the statute of limitations as a bar to the plea of set-off, he should reply specially that the causes of action did not accrue within six years next before the commencement of the suit. * * * If both the demands of the plaintiff and defendant accrued more than six years before the time of pleading, and the plaintiff issue process to prevent the statute of limitations affecting his demand, it will equally prevent the statute from barring the defendant's set-off, although the other issue no process." Ord v. Ruspinl, 2 Esp. 569, was an action of assumpsit on a bill of exchange accepted by the defendant The defendant pleaded a set-off which consisted of bills of exchange and promissory notes of the plaintiff, and which the defendant had taken up or paid on his account it was objected that, though the plaintiff's demand against the defendant had accrued very far back, yet, in fact, he had kept it alive by having sued out process within the six years and continued it; but that, as the defendant had not done so, his demand against the plaintiff must be held barred by the statute, and so was not such a demand as could be set off. Lord Kenyon said that as the transactions between the plaintiff and defendant were all of the same date, and as the bills seemed to have been given for their mutual accommodation, it would be the highest injustice to allow one to have operation by law, and not the other. He held the demand of the defendant to be good as well as that of the plaintiff, and permitted it to be set off. And see, also, Evans v. Prosser, 3 Term R. 186, 188; Walker v. Clements, 15 Q. B. 1046, 1050, also in 69 E. C. L. 1046, 1050; Braithwaite v. Coleman, 4 Nev. & Man. 654; Patrick v. Petty, 83 Ala. 420, 423, 3 South. Rep. 779; Eve v. Louis, 91 Ind. 457, 469, 470; Brumble v. Brown, 71 N. C. 513, 516; Haughton v. Leary, 3 Dev. & B. 21; Dunn v. Bell, 85 Tenn. 581, 583, 593, 4 S. W. Rep. 41; Railroad Co. v. Parks, 86 Tenn. 554, 565, 8 S. W. Rep. 842; Trimyer v. Pollard, 5 Grat. 460; Crook v. McGreal, 3 Tex. 487, 489, 490; Wat. Set-Off, p. 114, § 101; 13 Amer. & Eng. Enc. Law, 767. The only case opposed to these authorities whicli has come to our notice is that cited by plaintiff's counsel. McClure v. McClure, 1 Grant Cas. 222. This case holds that the defendant's action commences from the entry of his plea of set-off, and that the statute of limitations is to be computed from that date. No authorities are referred to in the opinion in support of that position, and the chief justice seems to have differed from...