# Trammell v. Harrell

> Supreme Court of Arkansas · July 15, 1842 · 4 Ark. 602

URL: https://www.frixlaw.com/law-library/cases/6537667

## Case

- **Full name:** Trammell v. Harrell
- **Court:** Supreme Court of Arkansas
- **Decided:** July 15, 1842
- **Citations:** 4 Ark. 602
- **Precedential status:** Published
- **Opinion:** Dissent by Ringo
- **Judges:** Dickinson, Lacy, Ringo
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled — as noted by a later court.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6537667

## Opinion text

Ringo, C. J., dissenting. In this case, two questions only have been discussed and decided by the court: First, whether, upon the death of a co-obligee, the whole legal interest in a chose in action survives to, and is by law vested in, the survivor. This question I understand to be"decided by the court, in the affirmative; and, if I correctly understand the opinion of the court, it rests upon the conclusion, that the common-law rule'on this subject, as respects personal property or choses in action, is not affected or abrogated by any of the statutory provisions in force here, which apply alone, as it is said, to real estate, and as to that, abolish or destroy the common-law rule. And this is said to be manifest, upon a consideration of the old law, the mischief designed to be remedied by the statute, and the remedy provided. Now, I have applied this rule of interpretation to the statutory provisions on the subject of survivorships, without being able to discover any principle or ground upon which they can be restricted, or held to include or abrogate the right, as regards real estate only. The common law, as I understand it, extended the rüle to personal as well as real property, and went so far even as to charge the survivor, upon a joint contract, with the whole demand; so that, upon the death of a joint co-obligor, his executors, administrators, and' heirs, were discharged from the obligation; and, upon the death of a joint owner of real or personal estate, or joint co-obligee, the whole legal estate or interest vested immediately in the survivor, who took it, discharged from all claim on the part of the legal representatives of the deceased joint owner, with this exception only, which is said to have been made for the encouragement of husbandry and trade, “ that a stock, on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common, and not as joint property, and there shall be no survivorship in them.” And, although there was no survivorship as to partnership property, in possession, jet, at law, there was, as to choses in action; and, when one or more partners, having a joint legal interest in a contract, died, an action ngainst the parties to it could be brought in the name of the survivor only, and the executor or administrator of the deceased could neither join in the suit nor bring a separate action on the contract, but was compelled to resort to a court of equity to obtain, from the survivor, the testator or intestate’s share of the sum thereon recovered. 2 Blackstone’s Com., 182 to 185, 595. 2 Saund. R. 51, n. 4.
Now, it will be remembered, that the common law, not only in relation to joint tenants, but also in relation to joint obligors, was entirely abrogated, by statutes, passed in 1806, by the Legislature of the Territory of Missouri, before the late Territory of Arkansas was established. which was continued in force, in the latter territory, and also in the Slate of Arkansas, until they were superseded and repealed by the statute of this State, approved February 14, 1838; (see Ark. Dig. 131, 312, and Rev. St. Ark., Ch. 82, pp. 475, 476); which lgtter statute, after providing “ that all joint debts or obligations shall survive against the heirs, executors, and administrators of such joint debtor or obligor as may die before the discharge of any such joint debt or ' obligationand, that “joint obligations shall be construed to have the same effect as joint and several obligations, and may be sued on, and recoveries had thereon, in like manner; that “ suits may be brought against the surviving obligor, and the heir, executor, or administrator of the deceased obligor, at the same time;” and, that “no creditor, on any joint or joint and several obligation, shall have more than one satisfaction and costs, in one suit:” further expressly declares, that “ all survivorships in real and personal estate, are forever abolished.” These provisions, as it seems to me, are so plain and unambiguous as to leave nothing to construction, and no doubt as to the intention of the Legislature. The language used certainly comprehends every case of survivorship, and, by necessary implication, as I conceive, repeals all laws establishing any such right, as well in respect to personal property and choses in action, as to real estate, without any reservation whatever. And I know of no rule or principle which warrants any restriction of, or exception to, its general operation; for, I think it has been sufficiently shown, that the injustice, the hardship, and the inconvenience of the old law, was not confined to real estate, but also extended to personal property and even choses in action; because, in respect to the latter, it could scarcely be considered just, that a surviving obligor, simply from the accidental circumstance of the death of his co-obligor, should be bound to answer the whole demand, and be deprived of all right to call upon the legal representative of his deceased co-obligor for a ratable contribution, or that the legal representative of a deceased co-obligee should be obliged to wait until the joint demand was collected by the survivor, and then be compelled to sue him, in a court of equity, and there recover of him the share or portion of the deceased co-obligee, before he could obtain the possession and enjoyment thereof. And it was, as I conceive, to remedy these evils, and provide against every other hardship and inconvenience incident to the law of survivorship, that the act in question was passed; and therefore it ought not, and in my opinion cannot, consistently with any known and admitted rule of interpretation, be restricted in its operation, to any class of cases, but should be held to comprehend and repeal all laws pre-existing on the subject, and to take away or divest every right thereby conferred. Some inconvenience, I admit, might be expected from so radical a change in the law, but that consideration'furnishes no authority to disregard, or by construction qualify a law where, as in the present instance, it is expressed in terms plain and unambiguous, and without any qualification or restriction whatever. In such case there is no room for construction, and the law must be understood literally; that is, according to its literal import, without any addition, qualification,.or restriction, whatever; and the courts are bound so to adjudicate it, and leave the remedy for such inconvenience, when discovered, to the Legislature.
The second question decided by the court, according to my understanding of the opinion of the court, is, that no demand can be, legally, the subject of a set-off, under our statutory provisions in relation to that subject, except such as are due from all of the plaintiffs to all of the defendants in the suit in which the set-off is claimed. In this opinion, I cannot agree with the majority of the court. It is well understood, that no set-off was allowed by the common law; and, that the whole right of set-off, in actions at law, had its origin in certain statutes of England, the first of which gave it only in respect to a single class of demands; but it has been considerably enlarged and extended by subsequent acts of Parliament, so as to embrace, generally, all liquidated damages or demands upon which an action of debt or indebitatus assumpsit would lie, but only where the demand to be set off is due in the same right, from all of the plaintiffs to all of the defendants. And this I understand to be one of the most prominent and distinct features in all of the acts of Parliament upon the subject, and it is one which appears to have been introduced into the statutes of set-off of a majority of the States in the United States, and in such States there can be no doubt that a demand, not due from all of the plaintiffs to all of the defendants, cannot be admitted as a set-off. because it is not within the provisions of law allowing such defence to be made. The statute of New-York, for instance, Rev. St. N. Y., 2d vol., 454, sec. 18, § 6, provides that, “ if there be several defendants, the demand set off must be due to all of them, jointly.” This provision is perfectly plain, and in that state there can be no doubt, that a demand, not due to all of the defendants, jointly, cannot be admitted as a set-off, because the law not only fails to give the right, in respect to other demands, which of itself would be sufficient to exclude them, but the statute, in terms the most explicit, expressly prescribes, that the demand to be set off must be due to all of the defendants, jointly. But no such provision is contained, in our statute, on the subject of set-off, and it is, as I conceive, only necessary to refer to the first and seventh sections of the statute, to show that there is a wide and marked difference, in this particular, between the provisions of our ■statute, and that above quoted from the statute of New-York. The first section of our statute of set-off, Rev. St. Ark. 726, Ch. 139, declares that, “ if two or more persons are mutually indebted to each other, by judgments, bonds, bills, notes, bargains, promises, or the like, and one of them commence an action against the other, one debt may be set off against the other, although such debts maybe of a different nature;” and the seventh section provides, that, “ when any plaintiff ■shall be indebted to a defendant in any bond, bill, ■ note, contract, book account, or other liquidated demand, and the defendant shall fail to set off such debt against the plaintiff’s demand, such defendant shall be forever barred from recovering costs in any suit which he may thereafter institute upon any such bond, bill, note, contract, book account, or other liquidated demand.” The language here quoted, it will be perceived, does not, in any way, make the right of set-off to depend upon the number of the defendants, as in the statute of New-York, but makes it depend solely upon the existence of a mutual indebtedness between one or more of the persons suing and one or more of the persons sued. To illustrate my view of the statute, suppose A., B., and C., indebted to E. in $1000, and E., at the same time, indebted to A. in the like sum of 1000. A. sues E. for the debt: can E. set off the debt due to him from A., B., and C.? Certainly. Why? Because there exists between him and the plaintiff a mutual indebtedness. Each owes the other a debt, and the law having made the debt of A., B. and C., several is well as joint, E. has an election to treat it as the individual debt of A.; and so regarding it, there is, certainly, in the most strict understanding of the term, a mutuality of indebtedness between the parties A. and E. But, suppose the suit brought by E. against A., B., and C., would not the same mutuality of indebtedness exist between A. and E.? I answer, that it would; and that, according to the letter, as well as the spirit of the statute, A. would have a legal right to set off the debt due to him from E., because, as before remarked, the debt of A., B. and C., is, by law, made several as well as joint, a id the election of the plaintiff to treat it as joint, could not, surely, be allowed to have the effect of changing the character of the contract, or of destroying any legal right of either of the defendants to interpose such defence as*he could have made, if sued separately. Now, if the mutuality of indebtedness, mentioned in the statute, referred to the parties to the suit, and the right of set-off depended upon the mutuality of indebtedness between the plaintiff and all of the defendants, the plaintiff, in almost every instance where there are several obligors, codd, at will, exclude any set-off of a demand due from him to all, or any number of them, by suing a greater or less number of them; that is, by omitting to sue a part only of those to whom he is indebted, or by joining, in the suit, some to whom he is not indebted; arid thus, the whole object of the statute might be, and I doubt not in many cases would be, defeated. The law is said to abhor a multiplicity of suits; and I understand it to be the principal, if not the sole object, of all laws of set-off, to prevent a multiplicity of actions, by enabling those who hold cross-demands against, or are mutually indebted to, each other, to litigate and finally settle them, in a single suit; besides, it is a remedial statute, and, when necessary to accomplish the object designed to be effected by it, should be liberally construed, so as to repress the evil and advance the remedy. This, I conceive, is most effectually done by admitting a set-off in all cases of mutual indebtedness between any of the parties to the suit, though this, according to my understanding of the provisions of the statute, would be nothing more than barely giving effect to it, according to its legitimate import.
Having thus expressed my opinion as to the points decided by the court, I will simply add, that, in my opinion, the judgment admitting the set-off, in this case, is erroneous, and ought to be reversed.
But the majority of the court being of a different opinion, the judgment was affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6537667. Public record. Not legal advice.