
    Alsop, Brannan and Alsop, against Caines.
    NEW YORK,
    Oct. 1813
    _ To an acmimpsifhy aI c. fo/foods vere/n¿ pleaded that the'^aie^&of o”6 n-ade™y the plaintiffs, name, ‘foe his and risi£°and th^ plaintiffs' Undet1 their name, &c. sold the goods, 8¿c. and that B,t as agent for the plaintiffs, assigned the debt or demand against C. to one F. to be collected and applied by him to pay a debt due to him from R , and that before the assignment, and before the suit by A. & B against 6., R. was indebted to C. to a greater amount, See. and was the person really, ultimately, and beneficially interested in the suit It was held, that the promise must be deemed to have been made by C. to A & B. who had a right to sell the goods, receive the money, and discharge C«, and tliat the suit was rightly brought in their names. That admitting R. was the cestuy que trust for whose benefit the goods were sold, the plea alleging also that F , as a cestuy que trusty liad brought the suit in the name of the plaintiffs, a court of law could not recognise and settle such interfering and complicated trusts ; and that the statute allowing set-offs (sess. 24. c. 90.) did not apply to the case. Besides, the defendant instead of pleading in bar ought to have pleaded the general issue, and given notice of the1 set-off^ according to the directions of the act.
    And where C. further pleaded tliat after the sale of the goods by A. & B. to him, R. became solely interested in the whole of the demand or debt against him, and while so interested became an insolvent debtor, within the intent of the act of the 3d of Aprils 1811, and while so interested iu the demand,,B , as acting attorney of the plaintiffs, by the direction of It. assigned the debt or demand to F to be collected by him for account oi R., and to be applied in pajrment of a debt due from R to F. in preference to other debts of R., and in contemplation of applying for his discharge under the insolvent act, and to defraud other creditors, of which F. had notice., and who had not, as a crédito! of H. imprisoned or impleaded him, See. and that R-. assigned all bis estate, &e under the act, and obtained his discharge, &c, this was held to be no bar to the suit of A. & 13. against C.
    THIS was an action of assumpsit for goods sold and delivered. The defendant pleaded, 1, Non assumpsit; 2. That the goods S(M &c. if any, were. certain books, See. and that before and at ^me °f selling and delivering thereof, &c. one Isaac Riley carried on the trade of a bookseller, by the plaintiffs, under their name, style, and firm of, Sec. but, in truth, for the profit and account said Riley, and at his risk, &c. and while the said Riley so carried on the trade, &c. he, the said Riley, by the plaintiffs, under their name, style, and firm,, &c. sold and delivered to the defendant, the goods, &c. being books, &c. mentioned in the P'™1^®8’ declaration; and that after the said assumptions, &c. the Gaid Isaac Riley was indebted to one Thomas Fairchild, and be-* Ing so indebted, the said Riley, by John Brannan, one of the plaintiffs, his agent, under the name of acting attorney for the said firm of, &c. under which the said Riley traded, &c. assigned to the said Thomas Fairchild, the account or demand of him the said Riley, though the plaintiffs, under the name, style, and firm, Sec. against the defendant, to be collected by the said Fairchild for and on account of, and in payment of a debt due to the said Fairchild from the said Riley, and to enable the said Riley, under the names of the plaintiffs, to receive from the said Fairchild the amount and benefit thereof; and that the bill in this suit was filed by the said Fairchild in the names of the plaintiffs, for the purpose of enabling the said Fairchild to pay and satisfy his demand, or some part thereof, against the said Riley, who is the person that is really, ultimately, and beneficially interested in the suit, &c. And further, that before the said assignment to the said Fairchild, and before and at the time of filing the bill in this cause, the said Isaac Riley was indebted to the defendant in a large sum of money, to wit, 1,000 dollars, &c. for work and labour, &c, and also for money lent, &c. and upon an account stated, &c. which sums of money exceed the damages alleged in tlie plaintiffs’ declaration; 3. That after the sale and delivery of the goods, &c. one Isaac Riley became solely interested in the whole of the supposed right, title, debt, due or demand of the plaintiffs against the defendant, and being so solely interested, the said Riley, while he was so solely interested, &c. became an insolvent debtor, within the true intent, &c. of the act, passed the 3d of April, 1811, entitled, &c. and after the said Riley became insolvent, and before the repeal of the said act, and before the filing' the said bill of the plaintiffs, and while the said Riley continued to claim to be solely interested in the whole of the supposed right, claim, See. of the plaintiffs against the defendant, to wit, on the 18th of January, 1812, John Brannan, one of the plaintiffs, as acting attorney of the plaintiffs, but by the direction, and on behalf of the said Riley, assigned to one Thomas Fair-child the said supposed right, title, debt, due and demand of the plaintiffs against the defendant, to be by the said Fairchild collected in the name of the plaintiffs, but, in truth, for the account of the said Riley, and in part payment and satisfaction, when collected, of a debt due from the said Riley to the said Fairchild ; and that the said assignment of, &c. was so made to the said Fair* child by the said Rile?/, to pay a debt due from the said SHey Ip 
      the said Fairchild, in preference to other debts due from the said ^ey> an(t in contemplation of applying for the benefit of the said act of the 3d of April, 1811, when the said Riley was an insolvent debtor, within the true intent and meaning of the said act, and with intent to defraud the other creditors of the said Riley, of which the said Fairchild had notice, See. the said Fairchild not being a creditor who had, before the passing of the said act, imprisoned, impleaded, or prosecuted the said Riley, Sec. for debt or any contract, &c. and that after the assignment to the said Fair-child, the said Riley presented his petition, Sec. praying that his estate might be assigned and he be discharged from his debts, according to the provisions of the said act, Sec. whereupon such •proceedings were had that the estate of the said Riley was assigned to certain assignees, See. according to the provisions of the said act, and that all the right, interest and demand of the said plaintiffs, or of the said Riley, in the supposed debt, Sec. against the defendant, became vested in law in the assignees of the said Riley, and that the judge to whom the petition of Riley was presented, did, by a discharge under his hand and seal, dated the 1st of May, 1812, discharge the said Riley from all his debts, &c. And that, in fact, the said bill of the plaintiffs in this suit was filed by the said Fairchild, in the name of the plaintiffs, for the purpose of enabling the said Fairchild to collect the amount of the supposed debt or demand of the plaintiffs against the "defendant, and to apply the same to pay and satisfy the debt of the said Riley to the Said Fairchild, in preference to the other creditors of the said Riley ; and this he is ready to verify, See. wherefore, &c«
    To the second plea, the plaintiffs replied, that the said Riley did not, by the plaintiffs, under their name, style, and firm, &c. or otherwise howsoever, sell and deliver to the defendant the goods, books, &c. in manner and form as the defendant in his plea alleged, &c. and this they prayed might be inquired of by the country, &c.
    To this replication to the second plea there was a special demurrer by the defendant; 1. Because the replication does not traverse or confess and avoid the matter alleged in the plea, nor answer it, but by way of inference and argument; 2. Because the matter set forth in the replication is matter of evidence, and no material issue can be taken thereon, &c.
    There was also another suit of Brisban ft Brannan against the same defendant, in which the pleadings were similar.
    
      Slosson, for the plaintiffs.
    
      
      Caines, contra.
   Kent, Ch. J.

delivered the opinion of the court. The second plea states that at the time the goods were sold, ope Isaac Riley carried on trade, by the above plaintiffs, under their name and firm, but, in truth, for his own profit, and on his own account, and at his risk; and that Riley, by the plaintiffs, under the above firm3 sold and delivered the goods, &c. From this statement in the plea, it appears that the suit is well brought in the name of the present plaintiffs; for the plea admits that the plaintiffs were authorized to sell the goods in their own names. The promise will therefore be presumed to be made to them, and they have a right to receive the money, and to discharge the buyer, and to compel payment. This was the doctrine laid down by Lord Mansfield, upon this very point, in Drinkwater v. Goodwin, (Cowp. 251.) The replication, however, traverses the fact that Riley had any concern in the contract, and tenders an issue upon it. But we need not concern ourselves with the replication, for the plea itself cannot stand the test of examination.

The plea is, in fact, a plea of set-off of a demand due from Riley to the defendant; but assuming that Riley was the cesluy que trust for whose benefit the goods were sold, a court of law cannot recognise and settle such interfering and complicated trusts as are unfolded by this plea. A set-off authorized at law under our statute, (sess. 24. c. 90.) only applies to the case of two or more persons dealing together, and one of them suing the other, and then the party sued may plead the general issue, and give notice of the matter he intends to set off; and if, by means of the set-off, the plaintiff is overpaid, the jury are directed to certify the balance due the defendant, for which the defendant shall have judgment and execution against the plaintiff. This provision is clearly inapplicable to the present case; and if the plea cannot be supported under the statute, it must fall; for it is admitted, that until the Fmglish set-off acts, a defendant was driven to his cross action, or to a bill in equity. (Collins v. Collins, 2 Burr. 820. Green v. Farmer, 4 Burr. 2214.)

The defendant pleads the set-off in bar of the action, instead of pleading the general issue, and giving notice of it as the act directs. He pleads it, not against the party suing him as the act directs, and which means the party to the record, nor as against Fairchild, the person whom he alleges is suing as cestuy que trust, in the name of the plaintiffs, but he pleads the set-off as against Riley. If, then, a balance was to be certified in his favour, there could not oe any judgment and execution against Riley, for he is no party te jjje recor(j} anci p would be unjust to make the plaintiffs personally responsible for the balance due from Riley to the defendant. The plea is accordingly inadmissible, and bad in substance.

The third plea is equally bad. Even admitting the truth of the plea, it is no bar to this suit, for the interest of Riley, or of his assignees, in the debt of the defendant, must still be recovered in the name of the present plaintiffs, with whom the defendant personally contracted. Whether the money will be recovered by the plaintiffs as trustees for Fairchild, or as trustees for Riley%s creditors, is immaterial to the defendant; he has no concern with the question. The claim of Fairchild on the one hand, and of the assignees of Riley on the other, to the debt to be recovered, Cannot be tried in this suit. The plaintiffs are still entitled to recover the debt as trustees for one or the other of these creditors; and, after they shall have possessed themselves of the debt, may, for their own safety, and as stakeholders, compel these dif ferent creditors to interplead and have a decree in equity in favour of the rightful claimant.

The plaintiffs are, accordingly, entitled to judgment upon each demurrer.

Judgment for the plaintiffs. 
      
       See Brisban and Braman v. Caines, ante, 45.
     