
    [Chambersburg,
    November 1, 1821.]
    MINICH and another, Administrators with the Will annexed of COZIER, against COZIER.
    TN ERROR.
    In an action brought by two administrators; with the will annexed, on a bond’ given to the testator, the defendant cannot, under the pleas of payment with leave to give the special matter in evidence, and set-off, prove, that upon a settlement of the testator’s estate, the debts had all been paid, and the legacies satisfied; and that the bond in question, with other monies received by the administrators, remained- to pay and satisfy the legacies and shares of the administrators in right of their respective wives; and that in consequence of the receipt of other large sums by one of the admiiiistrators, A., the said bond belonged to the other administrator, B.: That the defendant, before the suit was brought, had paid, as surety of B., sundry large sums on his account; and further, that B., before the commencement of the suit, had applied for, and obtained the benefit of the insolvent laws: That the defendant had been appointed his assignee, and regularly qualified as such.
    Writ of error to the Court of Common Pleas of Perry county.
    The error alleged, was in rejecting the defendant’s set-off The action was debt on a bond executed to the testator in his life time. Plea, payment with leave to give 'the special matters in evidence, and with leave of set-off and defalcation. The set-off proposed, was in these words:—
    
      “ The defendant, under the issues in this case, offers to prove, that the plaintiffs, John Minich and Peter Stroup, are administrators with the will of John Cozier, deceased, to whose • estate the bond in question belonged: That upon a settlement of the estate of the said John Cozier, deceased, the said administrators paid, and distributed to the respective legatees, their full shares in the estate of the said testator, by the payment of money, and delivery of other bonds belonging to the estate: That all- the debts against the said estate have been fully paid by the said administrators, out of other money and proceeds of the estate; and that the bond on which this suit is brought, together with other monies received by the said Minich, &c., as administrators, remained after the aforesaid division of the estate, to pay and satisfy the legacies and shares of the said Minich and Stroup, in right of their respective wives; and that, in consequence of the receipt of other large sums, by the said Minich, as administrator, the whole amount of the bond now sued, belongs to the said Stroup: That the defendant, before the bringing of this suit, as the surety of the said Stroup, paid sundry large sums of money for, and on account of the said Stroup; and further, that before the bringing of this suit, the said Stroup applied for, and obtained the benefit of the insolvent laws, and the defendant was appointed his assignee on the 8th of Jlugust, 1825, and has been regularly qualified as such assignee, and done all things necessary to qualify him to act as assignee.”
    All this evidence was objected to, overruled by the court, and a bill of exceptions sealed. It appeared that there were twelve other bonds of one hundred pounds each, falling due annually, from the defendant to the testator’s estate, the last of them payable in 1831.
    
      Carothers, for the plaintiff in error.
    — An equitable set-off may be permitted.' It ought to be so here, to prevent an irreparable injury. The'real plaintiff is Stroup. The money, if recovered, goes into his hands. He owes a just debt to George Cozier, and is insolvent. G. Cozier is his assignee. If he cannot retain, his debt remains, probably for ever, unpaid. So that the'set-off here is not merely to prevent circuity of action, but to prevent the recovery of a most unjust claim on one side, and an absolute loss on the other. Even in England, where equitable relief may be had in chancery, the courts of law, in questions of set-off, look to the real parties in interest, without regarding the names on the record. Here the inquiry proposed, will not be more multifarious, than often happens, in the case of an equitable defence; nothing more than was admitted in the case of Harper et al. v. Kean, 11 Serg. & Rawle, 280. Every defence resting on equity must, in some degree, present the same difficulty, and must require the same departure from the strict rules of law. G. Crozier being the assignee of Stroup, what he is here permitted to retain, he will be compelled to distribute to the creditors of the insolvent. He cited, Stewart v. Coulter, 12 Serg. & Rawle, 252, 445. Murray v. Gray’s Administrator, 3 Binn. 135.
    
      Miller and Metzger, contra.
    
    — The administrators must be entitled to recover the money which they are bound to account for. A debt to be set off, must not be in a totally different right from the debt in suit. This has been the invariable rule. Darrach’s Executor's v. Hays’ Administrators, 2 Yeates, 208. Stiles v. Donaldson, 2Dall. 264. Waln v. Anthony’s Executor, 5 Serg. & Rawle, 468. Wain v. Wilkins, 4 Yeates, 461. Dunkin v. Calbraith, 1 Browne, 14. The proposed set-off, is an attempt unheard of before, and the perplexity of the thing cannot be, exceeded. Half a dozen disputes are to be dragged from a distance into this cause, and more than half a dozen different parties to be in effect substituted, and to be bound by the result, though they are not in court, and have no right to be heard. To-heighten the confusion, if possible, even the creditors of Stroup are to be substituted in effect: or if not so, G. Cozier, the assignee, if he can set off his debt,-secures to himself a priority before them. Wolfersberger v. Bucher, 10 Serg. & Rawle, 10.
   The opinion of the court was delivered.by

Tod, J.

— We see no error in this record. ■ There is a simplicity in the law which, to the extent here asked for, cannot be broken in upon. It seems agreed, that a defendant in a suit by administrators is not permitted, by the. general rule, to set off a debt due to himself from one of the administrators, altogether unconnected with the estate in right of which the suit is brought. But it is said, here are numerous facts proposed to be given, to take this case out of the rule. Now, to my apprehension, the very multiplicity pf the facts offered, would seem to forbid the attempt.. Not only is the debt said to be due from Stroup to be proved, but-a settlement of the estate and a distribution of the assets, though the suit itself is an effort to recover a part of the assets, and one of the pleas is payment, and twelve more bonds are yet claimed as payable from the same defendant. Next is to be proved a settlement between the two administrators; then the full payment of all debts; the full payment, of all legacies; and next, the means by which the bond in question, though given to the testator in his life time, had become the separate property of one of the administrators. Admitting that Minich, the other administrator, being in court, might have an opportunity to controvert the proof offered, as far as it denied his interest, and thus be allowed the means of prosecuting two contests at á time; one against his co-administrator and co-plaintiff, and the other against Cozier, the defendant; yet, what shall be said to legatees, to creditors, or those who may claim to be such, and may not be willing, that full satisfaction of their demands shall be made out against them, in a suit between other men, but whose rights may be decided on without a hearing; unless eafeh one, upon notice given, may be permitted to come in and defend for himself? .Whether they come or not, I apprehend, the jury and the court would not find themselves the less entangled in a complication of issues of fact and disputes, in their own nature, wholly unconnected with each other, brought together, against all precedent in the law, by this plea of set-off. Besides, though the defendant’s first plea is on his own account, payment by himself, yet, he offers the set-off in the character of assignee of Stroup; then, if he succeeds, that is, if he pays his own debt to the administrators by the set-off, he either gains for himself an unequal distribution out of the insolvent estate, or he puts a great difficulty in the way of calling him to account as assignee; it being next to impossible to know from the record, if the jury make a deduction, whether they make it under the plea of payment, or under the set-off. 'As to the supposed hardship and the risk of the money going'possibly intq the hands of the insolvent administrator, clearly this administrator may be called upon to give good security, if he has not already given it, or may be removed from the office. The hardship appears the very same upon the defendant, that it would be if Stroup had never been administrator at all, or being administrator, had been removed.

There was another exception to the opinion of the court below. The bond sued on having been given in part pay for land, the defendant, to show a failure of consideration, produced the record of a recovery in a writ of dower out of the same land. The plaintiffs were permitted to repel this evidence, by showing a release by the demandant in dower, though executed long after this,action was brought. It was assigned for error, but giyen up without argument.

Judgment affirmed*  