
    No. XI.
    John Morton v. Gordon and Alley, Administrators.
    (See .)
    
      On appeal.
    
    
      
      .—Morton v. Gordon and Alley, p. 396.
      Jurisdiction over person may be conferred by consent or by acts tantamount to consent. Green v. Hill, 4 T., 465; Campbell v. Wilson, 6 T., 379; Burnley v. Cook, 13 T., 566; Life Ins. Co. v. Ray, 50 T., 511; Galveston Co. v. Noble, 56 T., 575; Brooks v. Chatham, 57 T., 31; Glass v. Smith, 66 T., 548; Douglas v. Baker,,79 T., 499; Fairbanks v. Blum, 2 T. C. A., 479; United Workmen v. Stumpf, 24 T. C. A., 309; Osborne v. Barnett, 1 App. C., sec. 125; Life Ins. Co. v. Fitzgerald, 1 App. C., sec. 1346. But jurisdiction over subject matter can not be conferred by consent. Wynns v. Underwood, 1 T., 48; Swigley v. Dickson, 2 T., 192; Foster v. McAdams, 9 T., 542; Burnley v. Cook, 13 T., 586; Life Ins. Co. v. Ray, 50 T., 511; Henderson v. Beaton, 52 T., 29; Smith v. Parks, B5 T., 82, 86; Watson v. Baker, 67 T., 48, 50; Griffin v. Brown, 1 App. C., sec. 1099; Haney v. Milikin, 2 App. C., sec. 223. The principle of set-off is statutory and analogous to “compensation” in the civil law. It is Unknown to the common law and was engrafted into our law by Act of February 5, 1840 (Gammel’s Laws of Texas, vol. 2, p. 236), to avoid multiplicity of suits. Bates v. Republic, 2 T., 616; Thomas v. Hill, 3 T., 270; Holliman v. Rogers, 6 T., 91; Fitzhugh v. Orton, 12 T., 4. Set-off must be mutual and due In the same right with the debt sued on. Allbright v. Aldrich, 2 T., 166; Wright v. Treadwell, 14 T., 255; Simpson v. Huston, 14 T., 476; Bullock v. Dunbar, 17 T., 243; McCorkle v. Lawrence, 21 T., 731; Hamilton v. Van Hook, 26 T., 302; Riley v. Runkle, 29 T., 92; Maxey v. Besser, 44 T., 506; Evans v. Bell, 45 T., 553; Masterson v. Goodlett, 46 T., 402; Casey v. Hanrick, 69 T., 44; Pires v. Snodgrass, 91 T., 105; Sheilds v. Stark (T. C. A.), U. R. C., 1899. Not required to be mutual and due in same right, where plaintiff is insolvent or a nonresident. Hanchett v. Gray, 7 T., 549; Castro v. Gentiley, 11 T., 28; Simpson v. Huston, 14 T., 476; Aycock v. Doty, 1 App. C., sec. 223; Bolton v. Sadler, 1 App. C., sec. 1227; Melvin v. Chancy, 8 T. C. A., 252; Fleming v. Stansell, 13 T. C. A., 558; Neely v. Grayson Co. Bank, 25 T. C. A., 513; El Paso National Bank v. Fuchs (T. C. A.), U. R. C., 1895; Anderson v. Whitehead (T. C. A.), U. R. C., 1901. Unliquidated damages can not be set off or plead in reconvention against a liquidated demand or debt, and vice versa. Rev. Stats., 1895, art. 754; Walcott v. Hendrick, 6 T., 406; Carothers v. Thorp, 21 T., 358; Cato v. Phillips, 28 T., 101; Walker v. Burks, 48 T., 206; Craddock v. Goodwin, 54 T., 578; Parks v. Dial, 56 T., 261; Riddle v. McKinney, 67 T., 29; Howard v. Randolph, 73 T., 454; Rogers v. Watson, 81 T., 400; Taylor v. Bewley, 93 T., 524; Dempsey v. McKennell, 2 T. C. A., 284; Bank v. Kilgore, 17 T. C. A., 462; Santleben v. Froeboese, 17 T. C. A., 626; Taylor v. Bewley, 23 T. C. A., 509; Worley v. Smith, 26 T. C. A., 270; National Guarantee and Loan Co. v. Thomas, 28 T. C. A., 379; Davis v. McDowell, 1 App. C., sec. 380; Couch v. Parker, 1 App. C., sec. 438; Schmidt & Zeigler v. Rost, 1 App. C., sec. 684; Le Geirse v. Mathews, 1 App. C., sec. 779; Pittman v. Keith (T. C. A.), U. R. C., 1893; Wilson v. Manning (T. C. A.), U. R. C., 1896; Norwood v. Bank (T. C. A.), U. R. C., 1898; Hansen v. Yturria (T. C. A.), U. R. C., 1898; Presnail v. McLeary (T. C. A.), U. R. C., 1899. Except when the set-off is founded on a cause of action arising out of, or is incident to, or connected with, plaintiffs cause of action. Rev. Stats., 1895, art. 755; Egery v. Power, 5 T., 501; Walcott v. Hendrick, 6 T., 406; Hammons v. Belcher, 10 T., 271; Castro v. Gentiley, 11 T., 28; Sterrett v. City of Houston, 14 T., 153; Brady v. Price, 19 T., 285; Bodman v. Parris, 20 T., 31; Ashworth v. Dark, 20 T 825; Carothers v. Thorp, 21 T., 358; Duncan v. Magette, 25 T., 245; Coleman v. Bunce, 37 T., 171; Calhoun v. Pace, 37 T., 454; Beckham v. Hunter, 37 T., 551-Hoodhue v. Myers, 58 T., 405; Scalf v. Tompkins, 61 T., 476; Satterthwaite v. Loomis, 81 T., 64; Du Bois v. Rooney, 82 T., 173; Paschal v. Penry, 82 T., 673; Imperial Co. v. Bank, 5 T. C. A., 686; Brown v. Montgomery, 19 T. C. A., 548; Howard v. Moore, 1 App. C., sec. 225; Bacon v. Lloyd, 1 App. C., sec. 285; McDonnell v. Bitters Co., 1 App. C., sec. 1160; G. C. & S. F. Ry. Co. v. Tacquard, 3 App. C., sec. 250; Scott v. M. N. Ry. Co., 4 App. C., sec. 287; Streeper v. Thompson (T. C. A.), U. R. C., 1893. Insolvency of plaintiff is no ground for setting off unliquidated damages against liquidated. Walcott v. Hendrick, 6 T., 406; Duncan v. Magette, 25 T., 245; Fondren v. Leake, 1 U. C., 151; Bennett v. Carsner, 1 App. C., sec. 619; Knight v. Old, 2 App. C., sec. 78; Smith v. Bates (T. C. A.), U. R. C., 1894; Presnail v. McLeary (T. C. A.), U. R. C., 1899. Liquidated debts or damages may be set off against liquidated. Sheldon v. Martin, 65 T., 409; Jones v. Hunt, 74 T., 657; June v. Brubaker, 5 T. C. A., 79; Bank v. Lynch, 6 T. C. A., 590; Walker v. Fearhake, 22 T. C. A., 61; Bank v. De Morse (T. C. A.), U. R. C., 1894; Snelling v. Koerner (T. C. A.), U. R. C., 1894. Unliquidated against unliquidated. Bodman v. Harris, 20 T., 31; Sanders v. Bridges, 67 T., 93; Taylor v. Bewley, 93 T., 524. But damages arising from separate torts can not be set off against each other. Hart v. Davis, 21 T., 411; Boyd v. Clark, 21 T., 426; Shook v. Peters, 59 T., 393. Mutual accounts may be set off against each other. Hall v. Hodge, 2 T., 323; Crook v. McGreal, 3 T., 487; Campbell v. Park, 11 T. C. A., 455. Usurious interest against principal. Huggins v. Citizens Bank, 6 T. C. A., 33. Apparent legal holder of note may plead it in set-off. Thomas v. Young, 5 T., 253. Cburts have power to set off mutual judgments against each other, independent of statute. Simpson v. Houston, 14 T., 476; Duncan v. Bullock, 18 T., 541; Dutton v. Mason, 21 T. C. A., 389. Debt due deceased person or his estate may be set off in an action by legal representative, though it has not been presented for allowance. Morton v. Gordon, Dal., 396; Thomas v. Hill, 3 T., 270; Smalley v. Trammell, 11 T., 10; Hall v. Hall, 11 T., 526; Dickenson v. McDermott, 13 T., 248; Mitchell w Packer, 22 T., 66; Anrus v. Pettus, 36 T., 108; Alford v. Smith, 40 T., 77; Traders Bank v. Cresson, 75 T., 298; Chapman v. Brite, 4 T. C. A., 506; Walker v. Fearhake, 22 T. C. A., 61; Collins v. Barbee, 3 App. C., sec. 126. If claim has been approved, can not be used as set-off without showing necessity for equity. Robb v. Smith, 40 T., 89; Floyd v. Rust, 58 T., 503. Executor can not set off damages for harassment and attorney’s fees against claim due from estate; nor a debt due the estate by an assignor of a claim due by the estate. Selkirk v. McCormick, 33 T., 136; House v. Collins, 42 T., 486. An heir can not set off a debt due estate with his distributive share. Guthrie v. Guthrie, 17 T., 541. Set-off can not be allowed against State, unless authorized by statute. Borden v. Houston, 2 T., 594; Bates v. Republic, 2 T., 616; Chevallier v. State, 10 T., 315; Dean v. State, 54 T., 313, 314; State v. Snyder, 66 T., 687. When two are separately liable for the whole debt, it may be set off against either of them. Rust v. Burke, 57 T., 341; Fleming v. Stansell, 13 T. C. A., 558. Creditor of husband can not set off debt of husband against use and hire of wife’s separate property. Carr v. Tucker, 42 T., 330. Quaere—Can damages growing’ out of suit in another State be pleaded in set-off in this State? Wiley v. Trawick, 14 T., 662; Withee v. Fearing, 23 T., 503. An assigned debt may be set off with a debt due from assignor before notice of assignment. Townsend v. Quinan, 47 T., 1; Fry v. Houston, 6 T. C. A., 710; Ellis v. Kerr, 11 T. C. A., 349; Tyler Car and Lumber Co. v. Wettermark, 12 T. C. A., 399; Henderson v. Johnson, 22 T. C. A., 381; McCarty v. Squyers (T. C. A.), U. R. C., 1896. Defendant may plead any set-off acquired before filing plea. Thomas v. Young, 5 T., 253; Parrott v. Underwood, 10 T., 48; Wright v. Treadwell, 14 T., 255; Gaines v. Salmon, 16 T., 311; Lemmon v. Box, 20 T., 329.
    
   BAYLOR, Justice.

In this case Gordon and Alley, as administrators of Albert D. Duncan, deceased, instituted their suit in the court below to recover of Morton, the appellant, the sum of $124.18, alleged to have been due and owing to Duncan in his lifetime by Morton. To the plaintiffs’ petition setting forth their demand, Morton filed his plea of set-off, averring that Duncan before his death was justly indebted to him in the sum of $101. To this plea the plaintiffs demurred. The court sustained the demurrer and, as both parties admitted the justice of each other’s claim, gave judgment for the plaintiffs.

'

A bill of exceptions taken in the case also presents the same- point for the consideration of this court which arose on the demurrer; and that is, “Does the act passed February 5, A. D. 1840, regulating the mode of settling the estates of intestate persons, preclude the defendant from the benefit of his plea of set-off, allowed as he contends by the act passed also on February 5, A. D. 1840 ?”

Before we are permitted to decide this point, although the parties have consented to the jurisdiction of this court, we feel bound to notice the question of jurisdiction as one of great moment to the jurisprudence of this country. Consent may do away error, but it is well settled that it can not give jurisdiction. By the act organizing the district courts, the right to appeal is expressly prohibited, unless the sum in controversy amounts to $300. Here the record shows that the amount in controversy was for a less sum. Hence if we entertain jurisdiction, our power to do so must be derived from some other source than the act alluded to, or the consent given.

It is urged that so much of the act of Congress as restricts the right of the citizen to appeal from the District to the Supreme Court is unconstitutional, and that this tribunal has the power to hear and determine all causes which may originate and have been decided in the district courts.

If this position be correct, then we can legitimately consider and determine the point arising on the demurrer.

We think the power here contended for justly belongs to this tribunal, and in coming to this conclusion we have not been unmindful of the magnitude of the principles involved, and the respect due to the popular branch of the government.

We have felt the delicacy and embarrassment of this question, and, if we were permitted, from these and many other considerations (as the amount in controversy is small) we would be induced to pass it over. “Fortunately, however, for the people, the function of the judiciary in deciding constitutional questions is not one which it is at liberty to decline. While it is bound not to take jurisdiction if it should not, it is equally true that it must take jurisdiction if it should; it can not, as the Legislature may, avoid a measure because it approaches the confines of the Constitution; it can not pass it by because it is doubtful; with whatever doubt, with whatever difficulties a case may be attended, it must decide it when it arises in judgment. It has no more right to decline the exercise of a jurisdiction which is given than to usurp that which it not given; the one or the other would be treason to the Constitution.”

With these few preliminary remarks, we proceed to give some of the reasons which have induced us to decide in favor of the power claimed for this court. We have searched in vain for the express power delegated to Congress in the Constitution to enact the restriction. If it has the power then it must be by implication alone; and by implication perhaps, Congress have the power to restrict the right of appeal from the inferior to the district courts.

If we compare the Constitution of this country with that of the United States and most of the States, we shall find this remarkable difference: the Constitution of the United States, for example, after speaking of the appellate jurisdiction of the Supreme Court, expressly states that it is to be exercised with such exceptions and under such regulations as the Congress shall make. Here the power to restrict is clearly given, and under this grant of power Congress has said no appeal from the circuit court shall be allowed unless the amount in controversy exceeds $2000. If our Constitution had contained similar expressions, the right to restrict would have been placed beyond doubt. But were these expressions casually dropped from the circumstance that the Constitution was formed in the midst of a revolution, or were they left out of the Constitution in order to take from Congress this restrictive power, and leave the appellate jurisdiction of the Supreme Court unfettered, “coextensive within the limits of the Bepublic?” To arrive at the true meaning, from the circumstances here stated, has produced our chief embarrassment. It may be said, although the Constitution is silent as to this restrictive power found in similar instruments, that silence is not extinction, and that Congress may, by a fair and liberal construction of its authority, exercise this power when the public welfare demands it. This may be true as to tribunals inferior to the district courts; but it would be carrying the doctrine of implication too far, as we conceive, to make it applicable to the question now under consideration. It may also be contended, as Congress have the power to make all laws which shall be necessary and proper for carrying all other powers into execution, this gave the right to enact the restrictive clause complained of. But in the case of Gibons v. Ogden, 9 Wheat., 1, etc., Chief Justice Marshall, in delivering the opinion of the court, says this limitation on the means which may be used is not extended to the powers which are conferred.

The difficulty still remains, and we confess we have been unable to solve it by any construction of the Constitution which would confer this power on Congress. The Supreme Court of the United States have expressly decided that they derive their appellate jurisdiction from the Constitution and not from acts of Congress. That it is true, Congress may restrict their appellate jurisdiction, for this power is given; but in all cases where they have not thought proper to do so, the jurisdiction remains with the court. In other words that they derive their jurisdiction from the Constitution itself. This doctrine we think correct, and that the jurisdiction of our Supreme Court, which is admitted by all to be appellate only, is derived from the Constitution in proprio vigore, and is “coextensive within the limits of the Bepublic.” Whether this appellate jurisdiction thus derived was intended to be exerted over all the inferior courts of the country, we leave open for the future decisions of this tribunal. It is sufficient to say for the present, that Congress has no power to restrict the citizen in his right to appeal from the decisions of the district court to the Supreme Court, in cases cognizable in the former .tribunal. If we test the soundness of this opinion by the rules which have been adopted for the interpretation of the Constitution of the United States, we think we shall be borne out in our conclusions on this subject.

One of those rules is, where the grant inures solely and exclusively for the benefit of the grantor himself, no one would deny the propriety of giving to the words of the grant a benign and liberal interpretation. Keeping this rule in view, let us refer to the eleventh clause of our Declaration of Eights. We there find that a remedy is guaranteed to the citizen for the redress of every civil injury; and we are here to pause, in order to ascertain what is properly embraced in the term remedy. Is it to be full, when a court of original jurisdiction only is provided to enforce it? Did the Constitution intend that in regard to one class of rights there should be supervision, and in another that there should be none? Such a discrimination and unjust spirit can not be deduced from that sacred instrument. It is the nation’s panoply! No one ought to be left precluded; nay, irrevocably doomed to abide the ministry of justice, by one functionary in the first instance. Why, in any class of cases, was appellate relief imparted? Surely on the reasonable presumption that the court acting primarily in the cause might err, or might oppress; and it was to remit the citizen to another and higher tribunal to have the error or the oppression, whether real or supposed, corrected or rebuked. Still another motive operated. The government being established to insure the protection, prosperity and happiness of the people, the administration of justice in the original and supervisory forums would conduce to public satisfaction.

Another rule of construction is: Where the power is granted in general terms, as the jurisdiction of this court has been, the power is to be construed as coextensive with the terms, unless some clear restriction upon it is deducible from the context. We do not mean to assert, as we have already intimated, that it is necessary that such restriction should be expressly found in the context. It would be sufficient if it arise by necessary implication. But it is not sufficient to show that there was, or might have been, a sound or probable motive to restrict it. A restriction founded on conjecture is wholly inadmissible. The reason is obvious. The text was adopted by the people in its obvious and general sense. For this doctrine, see Story’s Commentaries on the Constitution, vol. 1, p. 407. By applying this liberal rule of construction to the terms in which the jurisdiction of this court is conferred, we can not doubt for a moment but that it was the intention of the framers of the Constitution to give it a supervisory care and control over all cases originating and decided in the district courts; and we are strengthened in this opinion from the consideration that the district court is the connecting link between the people and this tribunal of the last resort. It may be regarded also as the only channel through which all admiralty and maritime cases, all cases affecting ambassadors, public ministers or consuls, can be brought into this tribunal. In the cases above enumerated the district courts have exclusive original jurisdiction. Surely, then, when the decisions in such cases are to be governed by the laws of nature and of nations, and when the peace and happiness of the Republic may often depend upon their correct adjustment, no one will contend, in this class of cases, that Congress have the power to restrict the right of the parties to appeal. If not, where shall we draw the line of demarcation? To attempt it, would be invidious and contrary to the soundest principles of construction. To illustrate still farther: It will be found by reference to the seventh and eighth sections of the Constitution, where after pointing out the manner in which the Supreme Court shall be constituted, the proviso in the eighth section says “that no judge shall sit in a case, in the Supreme Court, tried by him in the court below.” This proviso evidently shows that it was the intention of the makers "of the Constitution to allow appeals to be taken directly from the district to the Supreme Court. The appellate right here recognized, although not conclusive, is certainly given without restriction. With the application of one other' principle, we shall close our inquiries on this branch of the subject. It is admitted to be a sound rule that all remedial laws should be construed liberally. This rule is equally applicable to the remedial parts of the paramount law. If so, we think we have not erred in giving such a construction to the constitutional powers of this court as will enable every man, suing or sued in the district court, to have a remedy here to redress his real or imaginary wrongs. We do not perceive any ill consequences growing out of this decision. The only effect it can have will be to enlarge the right of appeal to all the citizens equally alike, and give uniformity to the decisions of the courts throughout the country. We have had-but little time to examine the important principle here settled; if errors should hereafter be found to exis in the opinion we trust it will not be attributed to a love of power, but to an overjealousy in guarding the rights of the people, and a desire to hear them unrestricted in this, the last citadel of justice known to the laws and Constitution of the nation.

The remaining point may be disposed of in a few words. We think the plea of set-off should have been allowed, as there is no conflict in the two acts referred to. The plaintiffs were not entitled to recover more than the balance due them, after allowing the set-off. If Morton had commenced his action against them for the set-off pleaded, then he could not have recovered, unless he had first proceeded in the way pointed out by the act regulating the settlement of the estates of intestate persons- But why compel him to do this, as in justice his demand was extinguished by that of the plaintiff?

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed; and proceeding to give such a judgment as in our opinion ought to have been given in the district court, we order, adjudge and decree that the appellees, Gordon and Alley, as administrators, etc., do recover from the appellant, Morton, the sum of $23.18, with legal interest from the rendition of this judgment until paid; and that the appellees pay the costs of this court, and the appellant the costs in the court below.

Reversed and rendered.

Judges Hemphill and Scurry say: “We concur in this opinion so far as relates to the jurisdiction, but not on the question of the set-off.”  