
    Alfred Finch vs. Lyman Ives.
    A judgment, on which an action of debt was pending, was pleaded in set-off in an action of assumpsit; the plea stating the fact of the pendency of the action upon the judgment. Before the trial of the action of assumpsit, a new judgment was rendered in the action of debt, for the amount of the original judgment and interest, and costs of suit Held that the costs of suit could not be set off with the rest of the judgment, but only the amount of the original judgment and interest.
    And it seems, that where a defendant pleads a set-off, and desires to obtain a judgment in his favor for the balance of his claim above the claim of the plaintiff, under the provisions of the statute (Rev. Stat., tit. 1, § 92,) authorizing the court to render such a judgment, he should ask for such a judgment in his plea.
    Whether, jn a ease appealed from a justice of the peace to the superior court, where the defendant has pleaded a set-off in the latter court, the court can render a judgment for the defendant for more than the amount for which a justice of the peace might have done: Quere.
    
    Assignment of errors. Seepage 117.
    Assumpsit, brought originally before a justice of the peace, and appealed by the defendant to the superior court. The *suit was brought in 1854. The defendant, in the [ *116 ] superior court, pleaded the general issue, with notice that he should set off against the claim of the plaintiff “ a certain debt, or so much thereof, as might be necessary,” amounting to $39.32, with interest thereon, which was due to him from the plaintiff, by a judgment from costs rendered in his, the defendant’s, favor, against the plaintiff, at the October term of the superior court for New Haven county, in the year 1852, upon which judgment the defendant averred that he had brought an action of debt against the plaintiff before the plaintiff brought the present suit, and which action was then pending. The case was tried to the court and the facts specially found. The claim of the plaintiff, which was for goods sold, amounted, at the time the suit was brought, to $23.50. The judgment in favor of the defendant, and which the defendant proposed to set off, was as described in the notice attached to the defendant’s plea. On this judgment an action was pending in favor of the present defendant when the present suit was brought, which action came by continuances to the same term of the court at which the present action was tried ; and in that action a judgment had been rendered at a prior day of the term, in favor of the present defendant, for $53.48 debt, and $152.05 costs,—in the whole, $205.53. This new judgment the defendant claimed the right to set off against the plaintiff’s claim under the plea originally filed, and to recover a judgment for the balance of the same above the claim of the plaintiff. The plaintiff denied his right to such set-off and recovery, but the court sustained the claim of the defendant, and rendered judgment for the defendant to recover the sum of $176.36, being the balance of the defendant’s judgment above the plaintiff’s claim. The plaintiff thereupon brought the record before this court by motion in error. The errors were assigned as follows: “And for causes of error the plaintiff assigns the following, to wit, that the court erred in ruling in conformity to the claims of the defendant, and in overruling the claims of the plaintiff; and that upon the facts specially found by the court, as contained and set forth [ *117 ] in its written *finding on file, judgment should have been rendered for the plaintiff and not for the defendant.”
    Upon the trial of the case in this court, after the papers had been read by the counsel for the plaintiff in error, Mr Ives, for the defendant in error,'moved that the case be dismissed on account of the insufficiency of the assignment of errors, referring to the rule of the court, (18 Conn., 572,) which requires that “ the precise matter' of error relied upon as the ground of reversal must be set forth,” and to the case of Reynolds v. Reynolds, 15 Conn., 84. Mr. Doolittle, for the plaintiff in error, contended that the assignment was in the usul form in cases where the judgment has been rendered on facts found by the court, and that, whatever the rule might by its terms require, yet the court ought to consider the practice which they had allowed to grow up under it, and not to put a new construction on the rule without seasonable notice to the bar ; referring to several cases where the errors had been assigned in the same manner. After consultation with the other judges the chief justice remarked, that in the circumstances the court would hear the argument, but that the practice of assigning errors so loosely was one which the court could not regard with favor.
    
      Doolittle and Platt, for the plaintiff in error.
    The superior court allowed the defendant to set off his judgment of $205.53 against the plaintiff’s claim, and rendered, judgment in his favor for the excess of that judgment above the claim. Thus the defendant has a judgment against the plaintiff for $176.36, and still retains his former judgment of $205,53. He ought not to have both. This judgment Could not have been .set off, because made up, in great part, of costs which had accrued after the plaintiff’s suit was brought, and so far as the costs that had accrued before are concerned, they could not have been set off, both because the defendant had not become legally entitled to them, and because they are not embraced in the plea of set-off. A debt offered as a set-off must have been due when the suit was brought. Mizell v. Moore, 7 Ired., 255. [ *118 ] 2 *Pars. on Cont., 247. Chitty on Cont., 847. Pate v. Gray, 1 Hempst., 155. And a judgment for costs alone will not be allowed to be set off in such a case. Collett v. Preston, 21 Eng. L. & Eq., 546. Gihon v. Fryatt, 
      2 Sandf. Sup. Ct., 638. And a set-off will not be allowed where the debt proposed to be set off is the subject of a pending action, as a party could thus avail himself of two separate actions for the same debt, the set-off being in the nature of a cross action. Loch v. Miller, 2 Stew. & Porter, 13. Hutchins v. Riddle, 12 N. Hamp., 464. Chase v. Strain, 15 id., 536. 2 Pars, on Cont., 251, note. The judgment set off was a different judgment from that set up in the plea. Even if it be regarded as the same debt in a different form, yet it was indispensable that the defendant should have amended his plea to make it correspond with the fact. The court, moreover, had no power to render judgment for the defendant for more than §35, since its jurisdiction was wholly appellate, and it could render only such a judgment as the justice might have done, which, in such a case, is limited by statute to the sum of $35. Rev. Stat., tit. 1., sec. 92. Glass v. Moss, 1 How., (Miss.) 519. Groff v. Ressler, 27 Penn., 71. McClain, v. Kincaid, 5 Yerg., 232. Nor to allow a set-off not pleaded before the justice. Owen v. Shelhamer, 3 Binn., 45. If the court had the power to render this judgment for the balance, yet, it was error in this case to do so, as the defendant in his plea of set-off had not asked for such a judgment, but had only offered to set off his judgment, or so much of it as should be necessary, against the plaintiff’s claim.
    
      Ives for the defendant in error.
    The statute gives a right of set-off in all cases of “ mutual debts.” The plaintiff was confessedly indebted to the defendant by the judgment for $39, at the time he brought his suit. The defendant had therefore a right to set off this judgment. This set-off he has given notice of in his plea, in the usual form. Nothing can destroy the right of set-off but something which extinguishes the debt. It is claimed that the right is lost by the merging of the defendant’s *original judg- [ *119 ] ment in a new judgment, after the plaintiff’s suit was brought and the plea filed. But this was a mere change of the form of the debt, and not an extinguishment of it. So far from this, it was the highest evidence that the debt was legally due and unpaid. Ripley v. Bull, 19 Conn., 56. Gunn v. Todd, 21 Mo., 303. 2 Pars. on Cont., 240. The remedy by set-off is, with us, a concurrent remedy with that by suit. A party is allowed to pursue all his remedies at the same time, obtaining, however; only one satisfaction. The fact therefore, that there was a separate suit pending, is no reason why the set-off could not be allowed. The costs recovered in the second judgment were a mere incident of’ the plaintiff’s recovery in the suit, and constituted no objection to the set-off, as the original judgment was more than sufficient, without these costs, to cover the plaintiff’s claim. The objection to the judgment for the excess, if in itself a valid one, can not be made under the present assignment of errors, since the error assigned is that judgment should have been rendered on the facts found for the plaintiff, and not for the defendant, while, if this objection is sustained, it would still leave a judgment to be rendered for the defendant. The same answer may be made to the objection that the court could not render judgment upon the plea of set-off for over $35, since it is not the amount of the judgment that the plaintiff complains of, but the fact that judgment was rendered for the defendant at all. But, if the objection could be considered, it is not a valid one. When an action is carried by appeal to the superior court, it is like any other action brought there, and open to any defense whatever that, is applicable to- it. The plea of set-off, being in the nature of a cross action, is limited as to the amount of the claim which it sets up, only by the jurisdiction of the .court in which it is filed, and is no more limited than a distinct cross action would be. The statute simply provides that no jus. tice of the peace shall render judgment in favor of the defendant, upon any such plea, for a greater sum than $35. Rev. Sta’t., tit. 1, sec. 92.
   [ *120 ]

*Ellswokth, J.

We all think there is error in the judgment of the court below, though we are not entirely agreed as to the duty of the court to reverse the judgment upon the errors assigned. Several grounds for reversal have been claimed by counsel, but we have occasion to consider, only a part of them.

The defendant gave notice that he should, if necessary, set off against the claim of the plaintiff, a judgment for $39.32, in his favor, recovered in the superior court, at its October term, 1852. He made no claim in his notice for a balance due him above the plaintiff’s claim, and gave no notice that he should ask for a judgment for such a balance, and yet he has a judgment now for a balance of $176.36; the greater part of which balance consists of costs in the then pending action on that judgment, wdiich had not been taxed, and had not even accrued, at the commencement of the plaintiff’s suit; for the case of Finch v. Ives had not then gone into judgment, and no costs had been awarded ; they were as yet future. So that the balance, beyond the $39.32 and interest thereon, being together $53.48, was neither due at the commencement of the present action, nor mentioned or claimed in the notice ; nor was it the same subject matter as that contained in the notice. These, we think, are most serious objections to the judgment, for the so called balance of $176.36, in the defendant’s favor.

Some of the court, too, believe that, as the present action was commenced in a justice court, where a balance, in set-off, of only $35 can be recovered by the defendant, (such being the language of the statute,) no more can be recovered here ; that the case comes up as it originally stood, for review, and for that purpose only ; and further, that if the defendant becomes, as it were, a plaintiff, by a species of cross action, he must, in his notice or plea, specify 1ns claim, and must be confined to the limits of the jurisdiction in which the case was begun. 1 Chitty on Cont., 847. Carpenter v. Butterfield, 3 Johns. Cas., 146. Jefferson County Bank v. Chapman, 19 Johns., 324. And further, we are not able to see why Ives should not have been left to hold his own ^judgment for $205.53, which he [ *121 ] recovered at that very term of the court, instead of taking judgment first in his own case, and then again, by waj of a balance, in the case against him. He seems now to have two judgments in his favor for the same debt. There is manifest error.

In this opinion, Stores, C. J., and Hinman, J., concurred. Sanford, J., was of opinion that the judgment should be affirmed.

McCurdy, J.

I should incline to the opinion of Judge Sanford, sustaining the decision of the superior court, but I think the case is not so presented here that we can with propriety pass upon it.

It comes up on a finding by the judge, reciting generally all the facts, and stating that the defendant claimed a right of set-off, to which the plaintiff objected, but which the court admitted ; and thereupon the motion in error is filed, averring that the court, in admitting the set-off, mistook the law.

Now I do not see how this recital of facts is any part of the record in a motion in error. It is said it can be made so by treating it as a bill of exceptions. But, 1st: It is not a bill of exceptions. 2d. If it had been offered as such, it conld not, according to one of the rules of this court, have been allowed. 3d. If it had been allowed, the motion predicated upon it could not have been heard here, in consequence of another rule, which says “ that in every motion in error there must be a special assignment of errors, in which the precise matters of error ór defeet in the proceedings below, relied upon ás the grounds of reversal, must be set forth, and no others will be heard or considered by the court.’.’ It is difficult to conceive a motion to which this rule would be more fatal, as no assignment of errors could have been more general and indefinite.

In this case the amount at stake is small, the legal principles involved are, at least, doubtful, and the merits are confessedly with the defendant.

I am unwilling to violate our most salutary rules, merely *to allow’ a legal exception of questionable im- [ *122 ] port to defeat a just judgment.

Judgment reversed.  