Posey v. Maddox

• Decision Date: 23 January 1888
• Citation: 65 Miss. 193,3 So. 460
• Parties: A. A. POSEY & BRO. v. C. M. MADDOX ET AL
• Court: Mississippi Supreme Court

3 So. 460

65 Miss. 193

A. A. POSEY & BRO. v. C. M. MADDOX ET AL

Supreme Court of Mississippi

January 23, 1888

APPEAL from the Chancery Court of Monroe County, HON. BAXTER MCFARLAND, Chancellor.

A. A Posey & Bro. exhibited this bill in equity against C. M Maddox, George C. Paine, and Andy Wood.

The bill set out that on Jan. 18, 1887, Posey & Bro. sued out an attachment against C. M. Maddox; that issue was joined on said attachment upon a plea in abatement; that in May, 1887 the plaintiffs dismissed said attachment, and thereupon a jury, on a writ of inquiry, assessed the damages for such suing out of this attachment at $ 104; that a judgment for that amount was rendered against Posey & Bro. in favor of Maddox; that at the time of the rendition of this judgment Maddox was indebted to Posey & Bro. in the sum of $ 1,100.00 for which the attachment was sued out, and that Maddox was then and still is insolvent; that Maddox has since transferred this judgment to George C. Paine, who is now seeking to enforce it by execution.

The complainants, Posey & Bro., ask an injunction restraining the Circuit Clerk, Andy Wood, from issuing execution on such judgment, and prays that the amount thereof be set-off against the debt due complainants by the defendant Maddox.

The defendants demurred to the bill. The Court sustained the demurrer and dismissed the bill, and the complainants appealed.

Sec. 3 of an act entitled "An act relating to damages in attachment cases," approved March 11, 1884, Session Acts, p. 76, is as follows:

"Be it further enacted, that whenever the issue joined upon a plea in abatement of any writ of attachment shall be found for the defendant, or the creditor intervening under this act, the judgment of the Court shall be, that the defendant recover of the plaintiff and his sureties the amount of the damages assessed by the jury and costs, that the suit as well as the writ shall abate."

Reversed, demurrer overruled and cause remanded, with leave to answer in thirty days from the filing of the mandate herein in the Chancery Court.

Clifton & Eckford and W. B. Walker, for the appellants.

The Statute of 1884 should be confined in its operation alone to the remedy. At the time of the rendition of the judgment enjoined here, complainant was not permitted by statute to offset it against his claim in the attachment proceedings. The offset at the time of judgment was clearly equitable on account of the nature of the claim as well as the situation of the parties. In such cases courts of equity gave relief long before there was any statute upon the subject of offset.

Waterman on Set-off, pages 18 and 19 and note 6; Graves v. Hull, 27 Miss. 419; Jeffries v. Evans, 43 Am. D., 158; Blake et al. v. Langdon, 47 Am. D., 701. See notes to this last cited case.

Much stress is laid on the words in the Code of 1880 (but not in act of 1884): "Shall have execution," and counsel construes these words to mean "shall collect his judgment, notwithstanding his insolvency and the existence of an equitable offset." Penal statutes are to be construed strictly; yet counsel wants not only his execution, but the money levied irrespective of other rights though clearly recognized.

It is true the general rule is that equity follows the law; but if there is an intervening equity connecting the demand of the plaintiff at law with the subject matter of the set-off beyond the statute, then courts of chancery will act upon it and grant relief by allowing the set-off.

Jordan et al. v. Jordan Ex., 12 Ga. 77.

Sykes & Bristow, for the appellees.

The first question in this case is: Was Section 3 of the Act of March 11, 1884, Act 1884, p. 77, intended as a mere brutum fulmen, "a tale told by an idiot, full of sound and fury signifying nothing," or was it intended as a real tangible, stinging penalty?

When a special act is passed declaring in effect that in case a plaintiff in attachment fails to sustain it, and damages shall be awarded against him, the debt of the attaching creditor shall not be set-off against the judgment for damages, and expressly repeals the law allowing such set-off will the plaintiff be allowed to turn around the next day and set it off in chancery, and in addition saddle the...