City of St. Louis v. Rogers , 7 Mo. 19 ( 1841 )

Opinion of the Court by

Tompkins, Judge.

The city of St. Louis commenced its suit against Rogers'. ' for the sum of fifty dollars and ninety-two cents. Rogers appeared and pleaded an offset of fifty dollars, which not being allowed by the justice of the peace, and judgment being rendered against him for the whole amount of the demand, he appealed to the circuit court, where his offset was allowed, and the city had judgment for ninety-two cents only.

set-off (R. Pase i)(9)isnotres-trictcd to na-but11 extends to corpora-right’ofset-off ®xlBts mfluits tions before

To reverse this judgment of the circuit court this writ of error is prosecuted.

The first section of the act regulating set-off, provides that if any two or more persons ax-e mutually indebted in any manner whatsoever, and any one of them commences an action against the other, one debt may be set off against the other, although such debts are of a different nature ; the 26th and 27th sections of the act concerning the revised ....... P statutes, it is declared that when any person is spoken of, bodies corporate, as well as individuals, shall be deemed to be included. See page 383 of the digest of 1835. But by the 5th section of an act to establish justices5 courts, &c., p. 348 of the digest of 1835, justices of the peace are denied junsdiction of any action against any rightful executor or administrator, or any corporation. This was evidently tended for the convenience of the executors, administrators, and corporations. But we have no evidence that the legislative power desired to deprive any person whom either an executor, administrator, or corporation might sue before a justice, of his right to set off; although the bcoks tell us that a set-off is in the nature of a cross action. But on the contrary, the 13th section of the 3d article of the act to establish justices’ courts, expressly recognizes this right as against executors and administrators, and provides that if a balance be found due to such defendant, it shall be evidence of a debt established, but that no execution shall issue thereon ; because the estate may not be solvent, and it is the province of the county to settle estates, and order the debts paid as money is raised. No such provision ought to have been made in favor of corporations, and if they elect to descend into the justices’ courts, evenhanded justice requires that they should abide the consequence. The legislature never could have intended that such institutions should be protected from the just demands of the defendant in a justice’s court while the executor or administrator was expressly made liable for the balance found against him in any suit he might institute before a justice. The judgment of the’circuit court ought hen to be affirmed, and such also being the opinion of the court, it is affirmed.