
    Murray against Williamson Administrator of Gray
    
      Chambersburg
    
    
      Saturday, October 6.
    
      IN ERROR.
    ILL of exceptions to the-opinion of the Common Pleas ' of Cumberland county.
    
    If the defendant ^3 an equitable demand against f„\einstance’a3 bond given by- * and by him in-{o^he defendant, the mü'him either set it off mand, or give it der Xeplea of" payment. Itis StXSi'S. should be able sue for the h5s
    There is nothing in the defalcation act of Pennsylvania set-offeMmrby°1- ug-alnst an executor or administrator. On the contrary that act has been uniformly construed to admit R¡,
    The action was covenant upon an indenture of lease, to recover rent in arrear at the death of Gray the plaintiff’s intestate. The defendant Murray pleaded covenants performed, and payment; and on the trial of the cause, after proving that in the lifetime of Gray, he, the defendant, had in his possession as his property, a certain single bill under the hand and seal of Gray executed to one John Conolly, and by him assigned in the presence of one witness to the fendant, he offered to give the bill and assignment in evidence under the plea of payment, as an answer pro tanto to the plaintiff’s claim. But this evidence being objected to, was overruled by the court, and the defendant tendered a bill of exceptions.
    
      Duncan for the defendant in error,
    cited Hutchinson v. Sturges 
      , Shipman v. Thompson 
      , Whitaker v. Rush 
      
      , Bull. N. P. 179. 
      , 1 Sehv. 138. Bull. N. P. 179. Cramondv. The Bank of the United States
    
    
      Watts for the plaintiff in error.
    
      
      
        Willes 204 note.
      
    
    
      
      
        Willes 103.
    
    
      
      
        Ambler 407.
    
    
      
      
         1 Binn. 64-.
    
   Tilghman C. J.

Murray was indebted to Gray in hís lifetime for rent. He had also in his possession a single bill from Gray to John Conolly, assigned to him during the ^raV ’n su°h a manner as to give him the complete' equitable property; but it was not assigned according to the act of assembly, so as to enable him to bring an action in his own name. This action was brought to recover the rent, and the defendant under the plea of payment with leave &c. offered to give the single bill in evidence, which was rejected by the court, and on this the bill of exceptions is founded. The plaintiff in error contends that the evidence was admissible, either as a discount, or as an equitable defence, on which he would have been relieved in a court of Chancery. The counsel for the defendant in error, in the opening of his argument, denied that under our act of assembly, there can be a defalcation, when either of the parties is an executor or administrator; but he did not persist in it, and certainly, the construction of the act has been uniformly to the contrary. This objection therefore is out of the question. If the single bill had been assigned in the presence of two witnesses according to the act of assembly, the defendant might certainly have availed himself of it, by way of defalcation. I see no good reason why he may not do it, as It is. It is stated in the bill of exceptions, that the single bill was the property of Murray. The case is much stronger in this court, than in the English courts of common law; because here an equitable defence is pleadable. But even the courts of common law have recognised the equitable owner of a chose in action, though the action was brought in the name of another for his use. In Winch v. Keeley, 1 D. & E. 619, where the plaintiff was a bankrupt, the court sustained the action for the use of another person, to whom the plaintiff had made an assignment of a chose in action prior to his bankruptcy. In Rudge v. Birch, Mich. 25 Geo. 3. K. B. cited 1 D. & E. 622, the action' was debt on bond, the defendant pleaded that the bond was given to the plaintiff for the use of A, for a debt due from the defendant to A, and that A at the time of the action brought was indebted to the defendant in more than the amount of the bond; held a good plea on demurrer. The same principle was established in Bottomley v. Brooke, cited 1 D. & E. 622. It. appears by some of the cases cited on the part of the defendant in error, that the debt sued for, and the debt set off, must not be in different rights. For instance, if the plaintiff sues as executor, the defendant cannot set off a debt due to him from the plaintiff in his private capacity, or vice versa; but that is not the present case. Here the plaintiff sues as administrator; and the debt offered to be set off, is due from the plaintiff’s intestate. Both are in the same right. But it is immaterial to the defendant, whether he avails himself of this defence by way. of defalcation strictly speaking, or on the ground of equity. It would be against equity, that the defendant should be compelled to pay this debt; when there is a debt due to him in equity from the plaintiff’s intestate. It not only subjects him to the expense and delay of a new action, but possibly to the loss of part of his demand, in case of a deficiency of assets. I shall gladly embrace every principle which prevents multiplicity or circuity of action. Justice is done to the plaintiff, if he receives what is due to the estate of Gray from the estate of Murray, deducting all legal or equitable debts due from the estate of Gray to the estate of Murray. I am of opinion therefore, that the evidence offered by the defendant was improperly rejected, and the judgment of the court of Common Pleas should be reversed.

Yeates J.

There is no ground for alleging, that set-off’s cannot be established in suits brought, by executors or administrators. It has been done repeatedly; and it cannot be objected thereto, that it disturbs the due course of administration of the estates of decedents, because the sum really due at the death of the party is the true balance, 1 Binn. 64. But it is clear, that a person indebted at the time of the death of the party, cannot buy in afterwards for the purpose of set-off, a debt of inferior dignity, which would be excluded from payment on a legal distribution of assets; for this would disturb the course of administration.

I admit that the debt, intended to be set off, must be claimed in the same right as -the debt demanded. But that objection does not occur in the present instance. Williamson claims the debt as administrator of Gray; and the counterclaim against him is in the same character.

It has been contended, that to enable a man to make a set-off, he must have it in his power to sue in his own name. ^es on ^le defendant in error to establish this position, which seems to militate against the first principles of justice. It has been observed by a law judge, that though a chose in action cannot strictly be assigned, a court of law would take notice of a trust, and consider who is beneficially interested. 1 T. R. 621, Winch v. Keeley. Besides, even admitting that this set-off could not be gone into"from the strictness of law, yet a court of equity would grant relief in any case, where there is an equitable without a legal right to set-off. 5 Vez. jr. 108, James v. Kynnier. Equity forms a part of our law; and we should be authorized to extend the remedy in a case like the present.

I am of opinion, that the judgment of the court of Common Pleas of Cumberland county should'be reversed, and a venire facias de novo awarded.

Brackenridge J.

In the lifetime of Samuel Gray, in whose right the plaintiff in the original action sues the defendant in that action, the how plaintiff Murray had in his possession as his property a certain single bill under the hand and seal of the said Samuel Gray. This I take to be the single criterion necessary to intitle to set-off, the having a property in a demand originally owing to one’s self or accruing in right of another, and its being between the same persons or their representatives by whom and against whom the demand on either side may be made.

An exception is stated of a debt due to the husband in right of his wife as that which cannot be set off in an action against him on his own bond; and also of a debt of his wife’s dum sola, which cannot be set off against a claim made by the husband alone, unless after marriage he makes the debt his own. I cannot see the reason of this; and therefore I deny it to be law. The husband has a property in the debt due to the wife though of a special nature, so that unless he reduces it to an absolute ownership, it will survive to the wife; but he may reduce it, and if he choose to exercise an ownership over it by a set-off, what can hinder him? Where he is liable as the husband for the debt of the wife, what hinders to set off such demand against any claim on his part? It prevents multiplicity of action, it involves no inconvenience, and is a construction according to the spirit and intention of the statute of defalcation or set-off. If British judges narrow the construction of their act, it is no reason that we should narrow ours, which is in terms more extensive. But it is not necessary to be more extensive than even the British, in my opinion, to justify the set-off in the case of the wife’s debt, or demand.

There would seem to be in the Law Tracts, Bulleds N. P. and Montague on Set-offs, a reference to some post-revolutionary cases to the contrary; but these are Nisi Prius cases; and if they were bench cases they would not be conclusive. Decision is but evidence of principle; and the appearing to be against reason must weaken this evidence. So that I do not see that even this exception ought to be considered as existing in the way of the general principle of the right of set-off, where an interest exists in the thing set off that would intitle the party to recover whether directly in his own name, or in the name of another for his use. On these grounds I am clear the set-off ought to have been allowed, and that the judgment ought to be reversed.

Judgment reversed.  