Duff v. Hobbs

Citations

• 19 Cal. 646

Syllabus

<p>Action on an appeal bond, in which defendants claim the right to offset the bal anee of a decree in a foreclosure suit, which they have pm-chased and now hold against James It. Duff and James T. Ryan, and eleven other defendants in that suit, upon the ground that James R. Duff and James T. Ryan are the parties beneficially interested in the claim in suit in this action, and that they and the other eleven defendants in the decree sought to be offset are insolvent: Held, that the set-off cannot be allowed, as well because of the provisions of section forty-seven of the Practice Act, which require a counter claim to be between parties to the record, between whom a several judgment might be had in the action, as of the provisions of sections one hundred and seventy-six and one hundred and ninety-nine, which would require a judgment for the excess to be given against the plaintiff, although as against him it is not claimed that defendants have any demand.</p> <p>Held, further, that the matter setup in the answer is not a defense, legal or equitable, in any other sense than as being purely an offset, and therefore such matter cannot be relied on as an equitable defense, independent of and beyond the right of offset given by the Practice Act.</p> <p>Naglee v. Palmer (7 Cal. 543) and Russell v. Conway, (11 Cal. 93) upon this subject of offset, and the distinction, if any, under our system between actions at law and in equity, commented on.</p>