Scott v. Scott

Bartol, J., delivered the opinion of this court. We think the decree, in this case, ought to be affirmed. The objection, that the cause was not regularly for hearing, under the rules of the circuit court at the April term 1859, when the decree was passed, is without any force; because the rules of that court, regulating the subject, are not set out in the record, and besides the decree states that, “the cause stood ready for hearing according to the requirement of the thirty-seventh rule, and we must presume all prerequisites-were complied with.” Rigden vs. Martin, 6 H. & J., 407 . In the view which we take of the case, it is not necessary for us to express- any opinion upon the exceptions to the commission and the testimony returned therewith, and the order of the court overruling these exceptions.

Without reference to the evidence, the complainant was entitled to the decree-upon the pleadings in the cause. The case made by the bill was one clearly entitling the complainant to the relief prayed, and its material facts were admitted by the answer,, which set up in defence new matter in avoidance, that was not sustained by any proof. Even if we are to consider the-replication as admitting that Polydore E. Scott, (the father of complainant,) was indebted at the time of his death to the respondent,,still we concur with the judge of the circuit court in the opinion, that such a debt is no set off, either in law or equity, to the debt due from the respondent to the complainant,, to recover which this bill was filed. The authorities re ⁹¹ ferred to by the learned judge in his opinion, fully sustain this conclusion.

The general principles which govern the rights of parties as to set off, are the same in courts of law and etpiity. 3 Md. Ch. Dec., 71. 4 Md. Ch. Dec., 325. 12 G. & J., 36. Ibid., 397. 3 Mason, 145 .

In the case of Lindsay vs. Jackson, 2 Paige, 581 , this subject is elaborately considered. The chancellor, on page 582, says: “As a general rule the court of chancery followed the rule of law, and after the statute had permitted set offs, to a certain extent in suits at law, this court also adopted and acted on that