Howard v. Shores , 20 Cal. 277 ( 1862 )

Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring.

The suit is upon a promissory note, and the answer sets up an indebtedness against the plaintiff and his brother as a set-off. On demurrer, the Court held that the indebtedness could not be pleaded as a set-off against the note, and entered judgment for the plaintiff. The defendants appeal, and contend that the decision of the Court upon the demurrer was erroneous.

The law of set-offs is a matter of statutory regulation, and the correctness of the decision depends upon the construction to be given to the statute. The forty-seventh section of the Practice Act provides that the claim to be set off shall be a demand “ existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between whom a several judgment might be had in the action.” In other words, that the claim shall be such that the party pleading it might obtain a several judgment against his adversary upon it; and this undoubtedly excludes a joint debt as a set-off against a separate debt. In this case, the defendants seek to set off a debt of the plaintiff and his brother against a debt due to the plaintiff alone, and it is clear that the statute gives them no right to do so.

The facts stated are not sufficient to justify the allowance of the set-off upon equitable grounds. It is alleged that the parties are indebted to a considerable amount, and that their property is incumbered by judgments, mortgages and attachments; but this does not show that they are insolvent, or that the defendants are in any danger of losing their demand.

Judgment affirmed.