Fitzhugh v. Orton , 12 Tex. 4 ( 1854 )

Hemphill, Ch. J.

The grounds on which the injunction is sought, are wholly insufficient. The plaintiff does not specify the ground on which his off-set was ruled out, whether it was deemed inadmissible from its character, or rejected for the want of proof. But admitting (and such was probably the fact) that it was excluded as from its nature inadmissible, and that such decision was erroneous, yet this would be no ground for injunction. The defendant had other remedies applicable to his case, and provided for by law. He might have sued on his excluded off-sets, and, if meritorious, recovered judgment. His claims had not been considered and adjudicated upon their merits, and consequently he was not by the plea in offset precluded from his separate action ; or he might have removed the cause by certiorari to the District Court, where the errors, if any, committed by the magistrate, might have been corrected, and the rights of parties speedily, and with a less accumulation of costs, adjusted.

To the decision of this case, it is not necessary to examine the action of the magistrate, and determine whether there was error or not in the exclusion of the set-off, and define the character of discounts which may be set up in a magistrate’s Court. By the 36th Section of the Justice’s Court Act, the defendant is allowed to prove any claim or demand not exceeding one hundred dollars, exclusive of interest, against the plaintiff, that is similar in its character to the demand of the plaintiff, (Art. 1723,) and, by the first Section of the Act allowing discounts and set-offs, he is authorized, when sued for debt, to make all the discounts he can against such debt.

Whether the rights of a defendant, as recognized under the General Law of Discounts, are enlarged or abridged, and in what respects, by the provision in the Justice’s Court Act, and what is the purport of the requisition in the latter that the claim of the defendant must be similar in its character to that of the plaintiff, can be ascertained and defined, when a case, requiring a decision on such points, is presented.

But in this case the plaintiff has mistaken his remedy, and we deem it inexpedient to discuss and settle questions, which, had they been properly presented, would have required consideration. As some of these questions have been argued by appellant, there is no impropriety in saying that we adhere to the views heretofore expressed in reference to the statutes of set-off, that a leading principle in our law and system of procedure is, to avoid a multiplicity of suits, and to settle in one action the respective claims of parties when they are of such a nature as to admit of adjustment in that mode. (3 Tex. R. 272.)

We are of opinion that there is no error in the judgment, and that the same be affirmed.

Judgment affirmed.