
    Whitehead and Wife v. Cade et al.
    
    In an action by an administrator for a debt created after the death of the intestate, claims purchased after the creation of the debt sued for against the estate, will not be allowed as assets. An action cannot be commenced against an administrator after he has reported the estate insolvent.
    An offset is in the nature of a cross action, substituted for the purpose of effectuating justice without an accumulation of actions, and can only be set up for a specific sum when an action might be brought for it.
    The law, by the proceedings directed to be had on deceased insolvents’ estates, places all the creditors on an equal footing, by entitling them to an equal distribution. To allow an offset to be set up by a debtor of such an estate in a suit by the administrator after a report of insolvency, would defeat the object of the law, and afford the means of doing th?.t indirectly, which cannot be done directly.
    AN action of assumpsit was commenced in the circuit court of the county of Franklin, by William Whitehead and Lydia his wife, formerly Lydia Cade, administratrix of all and singular the goods and chattels, rights and credits of Stephen Cade, deceased, against John Cade and John Baker, to recover the amount of a note executed by them to the said Lydia in her character of ad-ministratrix; declaration in the usual form, plea of payment with notice of offset, replication and issue to the country.
    Upon the trial, plaintiff proved by a production of the record from the court of. probate, that the estate of the intestate had been represented insolvent to thes said court, and that commissioners had been appointed to audit the claims against the estate, &c. The defendant, Cade, then offered to prove the several items of his offset under the plea of payment, and “that the said items had been paid by him, before the commencement of the suit, and by the direction of the plaintiffs, with the understanding and agreement that such payments should be equivalent to an actual payment to them of money, on the demand sued for in the action;” to which testimony the counsel for the plaintiffs objected, and the court sustained the objection and refused to permit the said testimony to go to the jury. The defendant excepted, and after ver-diet and judgment moved for a new trial. Upon consideration of the motion for a new trial, the judge presiding “having doubts as to the rule of decision/’ adjourned the same to the supreme court for adjudication.
    R. W. Webber, for plaintiff in error.
    Marsh, contra.
    
   Mr. Chief Justice Shaukey

delivered the opinion of the court.

This case is referred on doubts entertained by th,e judge on a motion for a new trial. The bill of exceptions shows the grounds on which I suppose the defendants relied, there being no reasons that I perceive assigned for a new trial.

It appears to be a question of offset entirely. The defendants were sued on a note given to the plaintiff, Lydia, while she was sole, as administratrix, subsequent to which payments had been, made, by the defendants, of sundry outstanding claims against the plaintiff’s intestate, which were attempted to be set up as offsets under the plea of payment. Before suit brought, the estate was reported insolvent, and commissioners of insolvency appointed.

It is said in the case of Root v. Taylor, 20 Johnson’s Reports, 137, that in an action by the administrator for a debt due to the intestate, claims purchased by the defendant subsequent to the death of the intestate are not a good offset. That the debt in this instance was contracted with the administrator, I do not think can make the case any better, especially when the estate has been reported insolvent. It is the object of the law to place the creditors of insolvent estates on an equal footing by entitling them to an equal distribution. In this case the offsets were acquired subsequently to the death, and consequently must have been purchased at the risk of the party. If he can-now set them up, after the report of insolvency, he would thereby gain a great advantage over other-creditors, who are by law entitled to equal protection. It would be throwing open the door to fraud, by suffering creditors to effect, by transferring their claims to the debtors of insolvent estates, what they could not directly do.

I do not think it necessary, however, to decide whether these are such mutual claims under our statute as, under ordinary circumstances, might become the subject of an offset. An offset is in the nature of a cross action, substituted for the purpose of effecting justice, without an accumulation of actions, and can only be set up for a specific sum, when an action might be brought for it. The defendants under the circumstances, could not, at the time of filing their offset, have brought suits for the claims against the administrator.

Our statute positively prohibits the bringing of a suit against an administrator after the estate is reported insolvent. Revised Code, p. 59, s. 103. If the suit be instituted before the report of insolvency, no execution' shall issue, but the judgment is to be filed with the commissioners, as a claim against the estate. Revised Code, p. 70, s. 1. A set off will not be allowed where an insolvency has intervened, because the claims of third persons come in question, and are equally entitled to satisfaction. 3 East, 149.

. The motion for a new trial must be overruled and judgment affirmed.  