
    *Christian Baughman, (for the use of Christian Over and Martin Kapp) against Daniel Divler.
    A legatee in right of his wife, transfers the legacy and takes a bond therefor. He previously purchases goods of the executors of the testator, and they insist on retaining the amount against his assignee of the legacy. This may be given in evidence on the plea of payment, against the equitable assignee of the bond. Cited in 5 Wh. 116, where the facts were very similar.
    
      Debt on bond, conditioned for the payment of 500 dollars on the 1st February 1797. Plea payment, with leave, &c. tender and refusal.
    The defendant’s specification was as follows. The bond was given in consideration of the plaintiff’s transferring to him a legacy devised to his wife Catharine of a residuary share of the estate of her father, John Fissel, deceased, for 600 dollars, whereof he had paid 100 dollars, and given this bond for the residue; previous to the transfer, the plaintiff bought sundry articles of the executors of Fissel at public vendue, amounting to 39I. 7s. 9d., which on the defendant’s settlement with them was insisted to be retained out of the legacy, and was actually retained. Pie also relied on his pleas of tender and refusal. The defendant brought into court on the return of the process in the Court of Common Pleas, 395 dollars, on the 1st June 1797, which were taken out by Over and Kapp, to whom the obligation had been informally assigned, on the 25th September 1798.
    Mr. Montgomery for the plaintiff
    objected to any testimony res¡Decting goods sold to Baughman by the executors of Fissel. The defalcation act is confined to mutual debts in cases of the same right. If a suit was brought against the executors for this legacy, they could not set off the amount of the goods sold in such action, being in different rights. Bull. 175. Espin. 239. i Vez. 208. So neither can the obligor set up this sale as a partial defence. The now defendant may legally recover the whole of the legacy from the executors, qua executors, and put them to their suit against the nominal plaintiff for the goods sold at vendue, wherein they must declare in their own rights, though derived through their executorship.
    Mr. Hopkins for the defendant
    rose to answer the objection, but was interrupted by the court, who observed — •
    If a credit was given to the plaintiff at the vendue of the effects of the testator by the executors, on the ground of his being a legatee in right of his wife, and it was so understood at the time, the amount of the goods bought by him would be an actual payment pro tanto of the legacy. To prevent circuity of action, courts of justice in England have lately been very liberal *on the subject of set offs. A debt due to a defendant as a surviving partner, may be set off against a ^ demand on him in his own right. 5 Term Rep. 493. So a debt due from a plaintiff as a surviving partner to the defendant, may be set off against a debt due from the defendant to the plaintiff in his own right. 6 Term Rep. 582. And it is obvious, and has often been remarked, that our defalcation act goes much further than the British statutes.
    But the present defence is not set up on the ground of a set off; it rests on a defect of consideration, on a suppression of the truth on the part of the obligee, whom the equitable assignees of the obligee represent. It is similar to the case of Colvin assignee v. Morris, determined at last December term, on a motion for a new trial, after the fullest argument. The plaintiff here has sold his entire interest in the legacy bequeathed to his wife, and has concealed the circumstance of his having previously received a part of it, by the purchase of personal assets. On the plainest principles of common honesty the evidence must be received.
   The defendant examined his witness, but not being able to establish a sale of the goods, a verdict was directed to be given against him for 671. 2s. 7d. the full balance.  