
    Gerber v. Meredith, Appellant.
    
      Set-off — Will—Assumpsit.
    One of several legatees under a will to whom the entire estate has been bequeathed, share and share alike, cannot set off, in an action of assumpsit against the legatee, a portion of a claim due by plaintiff to the estate against the debt due to plaintiff.
    Argued Feb. 12, 1894.
    Appeal, No. 372, Jan. T., 1893, by defendant, Leonora Meredith, from order of C. P. Schuylkill Co., Nov. T., 1892, No. 199, making absolute rule for judgment for want of sufficient affidavit of defence, in favor of plaintiff, M. A. Gerber.
    Before Sterrbtt, C. J., Green, Williams, Mitchell and Fell, JJ.
    Affirmed.
    Rule for judgment for want of sufficient affidavit of defence in assumpsit on contract of suretyship.
    From the record it appeared that Daniel Frack by his will gave all his property to his three children, share and share alike, of whom defendant was one. Plaintiff was indebted to the estate of Daniel Frack. Defendant was indebted to plaintiff under a contract of suretyship. Defendant claimed in her affidavit of defence to set off one third of plaintiff’s indebtedness to the estate against her debt to plaintiff.
    Rule for judgment absolute. Defendant appealed.
    
      Error assigned was above order.
    
      J. E. Minogue and Greorge J. Wadlinger, for appellant,
    cited: 3 Kent, *54; Clark v. Fletcher, 96 Pa. 416 ; Lang v. Keppele, 1 Bin. 123; Farmers’ Dep. N. Bank v. P. Bank, 123 Pa. 283; Russell v. Miller, 54 Pa. 164; Ahl v. Rhoads, 84 Pa. 326 ; Smith & Co. v. Myler & Aber, 22 Pa. 36 ; McGowan v. Budlong, 79 Pa. 472; Murray v. Williamson, 3 Bin. 135 ; Rider v. Johnson, 20 Pa. 190; Smith v. Ewer, 22 Pa. 117; Skiles v. Houston, 110 Pa. 258; Hunt v. Gilmore, 59 Pa. 452; Plunkett v. Sauer, 101 Pa. 356; Domestic Sewing Machine Co. v. Saylor, 86 Pa. 290; Chipman v. Bank, 120 Pa. 86; Walworth v. Abel, 52 Pa. 370; Ins. Co. v. Fidelity, etc., 123 Pa. 523; Nickle v. Baldwin, 4 W. & S. 290.
    
      Gr. H. Gcerber, for appellee,
    cited: Darroch’s Exrs. v. Hays’ Admrs., 2 Yeates, 208; Trunick v. Gilchrist, 81* Pa. 160; Tenant v. Tenant, 110 Pa. 478; Miller v. Ege, 8 Pa. 357; Stevens v. Cotterell, 99 Pa. 192; Eisenbise v. Eisenbise, 4 Watts, 134; Cox v. McKean, 56 Pa. 243; Lea v. Hopkins, 7 Pa. 492; 7 A. & E. Ency. L., p. 361.
    February 26, 1894:
   Pee Cueiam,

There was no error in entering judgment against defendant for want of a sufficient defence. We find nothing in the record that would warrant us in reversing the same. Further discussion of the questions intended to be raised by the specifications of error is unnecessary.

Judgment affirmed.  