
    Wesley Smith, Administrator of John Cannon, deceased, defendant below, Appellant, v. James Edwards, plaintiff below, Respondent.
    A balance due upon a note to an administrator, as administrator, given for goods sold by him at public sale as'the property of Ms intestate, cannot be set off in an action, at the suit of the maker of the note, against the administrator, for a debt due from his intestate to the maker of it.
    An appeal from a justice of the peace. Pronarr in as-, svmpsit on an account. The action was at the suit of Edwards, the plaintiff below, against Smith, administrator of John' Cannon, deceased, the defendant below, for one hundred dollars, due from John Cannon, deceased, to Edwards, the plaintiff bélow. On the trial here, Smith, the defendant below and the administrator of Cannon, pleaded a set-off to the demand of the plaintiff below, the ground of which was, that as the administrator of Cannon, after his. death, he advertised and sold his goods and chattels at public sale, at which the plaintiff below became the purchaser of a horse, at the bid of $530, for which he gave his note to Smith as the administrator of Cannon; but failing to pay the note when it was due, the horse was redelivered to Smith, who afterwards advertised him anew, and sold him again at public sale for $350, and now demanded the difference between the amount of the note and the price obtained at the last sale, $180, as a set-off to the claim of the plaintiff.
    A witness being called to prove the set-off, the counsel for the plaintiff below objected to the admissibility of the evidence, because, if due at all, it was not due to Smith, the defendant below, as the administrator of Cannon, but in his own right, and it could not, therefore, be pleaded or proved as a set-off in this action, which was for a debt due the plaintiff from Cannon, the,intestate, in his lifetime, and was now of course due from Smith, his administrator, solely in his representative capacity. Such being the case, they could not be set-off against each other for the want of mutuality. Rev. Code, 380; 1 Sel. N. P. 149; 2 Archb. N. P. 219; Barb. on Set-off, 54; 2 Cranch, 341; 8 Wend. 530.
    
      E. D. Cullen, for respondent.
    
      W. Saulsbury, for appellant.
   And of this opinion was the Court.

The testimony was excluded.  