
    Mercein vs. Smith, administratrix of Smith.
    Where, in an action by an administratrix, the defendant sought to set off the amount of a note made by the intestate and endorsed for his accommodation by the defendant, which the defendant had paid after the intestate’s death; held not a demand existing against the intestate at the time of his death, within 2 R. S. 279, § 37, 2d ed., and therefore not a proper subject of set-off.
    In a suit by an administrator upon a cause of action which arose after the death of the intestate, the defendant cannot set off a demand against the intestate, even though it existed at the time of his death.
    Administrators may sue in their own right for causes of action accruing to them after the death of their testator.
    In 1813, M. effected two policies of insurance in his own name on account of himself, S. and E., upon a vessel and cargo owned by them in equal shares. On the- 13th of March, 1816, S. made his promissory note at sixty days, which was endorsed for his accommodation by M. On the 2d of May, 1816, S. died; and soon after, M. paid the note, and subsequently received various sums under the policies which always remained in his possession, on account of a loss sustained previous to the death of S. In an action by the administrator of S. to recover his'share of the moneys paid to M., the latter claimed to have a lien upon the policies and their proceeds, for all liabilities on account of his endorsement and payment of the note: But held, that the right of lien did not attach.
    A plea of set-off so much resembles a declaration, that two or more parts of it are considered as so many counts, and if one part is good, a general demurrer to the whole will be bad:—the demurrer should be confined to the defective part.
    Where a demurrer is interposed to a surrejoinder, the plaintiff may go back and avail himself of a defect in the plea.
    On error from the superior court of the city of New-York. The declaration was for money had and received by Mercein, the defendant in the court below, for the use of Mrs. Smith, the plaintiff below, as administratrix of Jonathan Smith deceased. The defendant pleaded, 1. non assumpsit; 2. actio non accrevit, fyc.; and 3. set-off. The third plea, after reciting that the plaintiff’s cause of action, if any, arose from moneys received by the defendant on two policies of insurance effected by him in his own name on account of himself, the plaintiff’s intestate and one Everitt, the owners of a vessel, which policies were held by the defendant at the time of the intestate’s death, specified as items or causes of set-off, 1. moneys paid by the defendant after the intestate’s death, and while the policies were yet held by defendant, on a note made by the intestate in.his life time and, for his accommodation, endorsed by the defendant; 2. money paid by defendant for the intestate before his death; 3. money paid by defendant for plaintiff as administratrix; and 4. a .note made by the intestate in his life time payable to the defendant. The plaintiff in her replication took issue upon the plea of actio non accrevit, and to the plea of set-off, replied, nil debet, and that the set-off did not accrue within six years next before the commencement of the suit. The defendant rejoined, as to the causes of set-off which accrued since the death of the in • testate, that the plaintiff was appointed administratrix within six years next before the commencement of the suit; that there was no previous representative of the intestate against whom a suit could be commenced, and that these causes of set-off exceeded the plaintiff’s demand. This part of the rejoinder concluded with a verification. As to all the other causes of set-off the rejoinder alleged that they did accrue within six years &c., and concluded to the country with similiter. The plaintiff surrejoined, as to the causes of set-off alleged to have accrued since the death of Smith, that he, the said Smith, made a will and appointed the plaintiff" his executrix thereof; that the will was duly proved in 1816 and letters testamentary granted to the plaintiff who assumed the execution thereof; that the letters had never been revoked but still remained in full force, and were in the possession of the defendant ; that afterwards, in 1838, not knowing the premises but believing that Smith died intestate, the-plaintiff'took out letters of administration which were wholly void by reason aforesaid ; and that she was ignorant of the will and letters testamentary, the same having been concealed from her by the defendant, until after the above pleadings had been put in in this suit: and as to the same causes of set-off, the plaintiff in her surrejoinder further alleged, that they did not accrue within six years next before the commencement of this suit.
    The defendant demurred specially to the surrejoinder, and the plaintiff joined in demurrer. The court below gave judgment for the plaintiff.
    The cause was also tried in the court below upon the isstie of non assumpsit, and a verdict rendered for the plaintiff The defendant took a bill of exceptions. All the other material facts in the cáse are sufficiently stated in the opinion of the court.
    
      M. S.'Bidwell, for the plaintiff in error.
    
      R. Manning, for the defendant in error.
   By the Court,

Nelson, Ch. J.

The demurrer extends only to such "portions of the pleadings as relate to that part of the third plea which seeks to set off a debt arising since the death of Smith. The plea of set-off resembles so much a declaration, that two or more parts of it are considered as so many counts in a declaration, and are to be replied to accordingly : and hence, if one part is good, and another bad, the demurrer should be confined to the part defective; otherwise it will fail. (Dowsland v. Thompson, 2 Black. Rep. 910. Bab. on Set-Off, 83.) Here the pleadings have resulted in issues of fact in respect to all matters contained in the plea of set-off, except as to the items or causes there specified which arose since the death of Mr. Smith:—and the question is, whether these are proper subjects of set-off; for if not, the plaintiff has a right to go back, and claim the judgment of the court upon that part of the plea.

Since 1830, the rule on this subject has been declared by statute ;■ but the latter is simply an enactment of the law as it had been previously recognized and applied. (Root v. Taylor, 20 John. R. 137. Fry v. Evans, 8 Wend. 530.) The enactment is as follows: “ In suits brought by executors and administrators, demands existing against their testators or in-testates, and belonging to the defendant at the time of their death, may be set off by the defendant in the same manner as if the action had been brought by and in the name of the deceased.” (2 R. S. 279, § 37, 2d ed.)

This is the only case where a set-off is allowed against the estate of the deceased in a suit brought by the personal representative, where the suit is for a debt strictly due to the plaintiff in that capacity. And it is manifest that the defendant has not brought himself within it. The demand set off had no existence at the time of the death of Mr. Smith, in the sense of the statute, as it did not arise till the payment of the note.

But a decisive reason why this demand is not the subject of set-off here, even if it had been a debt due at the time of the death of the intestate, is, that the suit is brought for a cause of action that arose after his death, and might have been sustained by the plaintiff in her own name ; and whether brought in her own name or in her representative capacity, the set-off is improper as going to change the course of distribution of the assets. (See cases already referred to, and Shipman v. Thompson, Wittes, 103 ; id. 264, n.) .

As to the bill of exceptions r It appeared on the trial in the court below, that the defendant, in 1813, procured two policies of insurance upon the schooner Venus and her cargo, in which he and Mr. Smith, together with one Everitt, were interested each one third, and that a loss had happened before the death of Smith, which was on the 2d of May, 1816 ; that the defendant received various payments for said loss on account of the owners, after the death of Smith, and down to 12th April, 1838, amounting in the whole to $5681,85—one-third of which belonged to Smith’s estate.

In answer "to this .evidence the defendant offered to prove under the plea of non-assumpsit, or issue of nil debet on the plea of set-off, or both, the endorsement by him for. the accommodation of' Smith, of a promissory note made by the latter for $1616,75, payable at sixty days, dated March 13, 1816—which note was duly protested for non-payment and afterwards taken up by the defendant, The defendant’s counsel insisted, that this evidence would tend to show that the defendant had a lien upon the policies and their proceeds, as an indemnity for the liability assumed by reason of said endorsement and payment. It was also contended, that at all events, the evidence should be submitted to the jury to find the fact, whether there was not an understanding or agreement between Smith and the defendant that the latter should have a lien upon the policies and their proceeds for the amount of the note; and, further, that it was admissible under the issue of nil debet. The offer, however, was overruled by the court.

There is certainly nothing in the character or relation in which the defendant and Smith stood to each other, out of which, at common' law, the right of lien could arise; and the only ground upon which it can be placed is, an implied agreement or understanding arising out of the peculiar circumstances of the case. (2 Kents Com. 633. Ferguson v. Norman, 5 Bing. N. C. 76.) And I confess I am unable to discover any thing in the offer of evidence at the trial, which, upon this latter view, would tend to raise the inference of such implied agreement or understanding, except the naked fact of the custody of the policies at the time of the endorsement—a fact which I think the cour.t were right in regarding as too trivial even to be submitted to the jury.

The strongest case relied on, that I have seen, is Muir v. Fleming, (1 Dowl. & Ry. N. P. C. 29.) That was a life policy, and was placed in the hands of an agent in London, who had for years paid the premium upon it, and had been, in the habit of making advances for the intestate, for which he never had any other security. Abbott, Ch. J. denied any general lien; but submitted the point to the jury, to say, whether it had been left in the hands of the defendant for safe custody, or deposited with him as security for his advances; telling them, that in point of law, in the former case, their verdict must be for the plaintiff.

There the policy belonged to the intestate, who had the exclusive control over it. The leaving of it in the possession of the defendant, and the payment of the premium on it by him, which was, to that extent, conceded to be a lien, doubtless afforded some ground for the inference that both parties intended it should be held also as security for-other advances made from time to time to the owner.

But, in this cáse, the defendant procured the policies— was interested in and entitled to the custody of them as one of the owners—and had a right to retain them in defiance of Smith. The mere fact, therefore, of the possession, it seems to me, affords no presumption one way or the other, of an understanding between them that they should be held for the purposes claimed. The defendant might set up a lien with the same force of reason and argument in respect to any other species of property in his possession, in which both parties happened to be interested at the time.

The evidence offered, it may be conceded, went to establish the issue of nil debet in favor of the defendant; but if we are right in our view of the case on the questions raised by the demurrer, the finding of this issue for him could not change the result. It would have been the finding of an immaterial fact, notwithstanding which the court must have given judgment for the plaintiff.

Upon the whole, therefore, I think the judgment should be affirmed.

Judgment affirmed. 
      
      
         See Barbour’s Law of Set-Off, 164, 165.
     
      
       See S. P. Colby v. Colby, (2 N. H. Rep. 420;) per Richardson, C. J. citing Mowry v. Adams, (14 Mass. R. 327;) Savage v. Merriam, (1 Blackf. Rep. 177, note (1);) Tallmage v. Chappel, (16 Mass. R. 71, 72, and the cases there cited by Howe arguendo;) Biddle v. Wilkins, (1 Peters' Rep. 686 ;) Barnes v. Modisett, (3 Blackf. Rep. 253.)
     
      
       See S. P. Shaw v. Gookin, (7 N. H. Rep. 16 ;) Dale v. Cooke, (4 John. Ch. Rep. 11;) Butter's N. P. 180 ;) Colby v. Colby, (2 N. H. Rep. 419 ;) Woodman v. Barker, (id. 479;) Hills v. Tollman’s adm’r, (21 Wend. 674 ;) Barbour’s Law of Set-Off, Í31, and the cases there cited; Crews v. Williams, (2 Bibb, 262;) Burton v. Chinn’s adm’r, (Hard. Ken. Rep. 252.) 0
     