
    [Philadelphia,
    January 10, 1825.]
    STEWART, for the use of SALAIGNAC, and another against COULTER and another.
    A defendant, who is sued with another, may set off a debt due to him by the plain» tiff, unless there be some superior equity in a third person.
    This cause was tried before Mr. Justice Duncak, at nisi prius in April, 1824, when it appeared that it was a suit brought by Abraham Stewart, against John Coulter and William Day, to recover a compensation for services, as superearcargo of the ship Coromandel, on a voyage from Philadelphia to Antwerp, .thence to Java, back to Antwerp, and thence to Philadelphia. The ship arrived in Philadelphia in June or July, 1819, and on the 18th of August, 1819, the plaintiff executed an assignment of his claim to A. C. Salaignac and Cornelius Stevenson, for whose use the suit was brought. On the trial, Coulter offered to set off a judgment, which he had obtained against Stewart, long prior to his assignment to Salaignac and Stevenson; and his Honour having admitted the set-off, tho plaintiff moved for a new trial.
    The argument — by Tod and Condy, in support of the motion, and by Binney and Sergeant against it — turned principally on the special circumstances of the case, which, the defendants’ counsel contended, made the judgment an equitable set-off; but the court having decided the question upon broader grounds, it is deemed sufficient to refer to the authorities cited on either side, without stating the argument.
    Authorities cited, in support of the motion for a new trial, G Bae. Ah. 136. Set-off, C. Wain v. Wilkins, 4 Yea,tes, 461. Cra-mond v. Bank of United States, I Binn. 64. Wain v. Hewes, 6 Serg. & Raíale, 470. Barker v. Graham, 2 W. Bl. S69. Mitchell V. Oldfield, 4 Term Rep. 133. Doe v. Darnton, 3 East, 149. Dunlein v. Galbraith, 1 Browne, 14. 4 Johns. Ch. Rep. 11, Ex parte Edwards, 1 Aik. 100. Bishop r. Church, 3 Atk. 691. Ex parte Quintín, 3 Vcz.jr. 248. Ex parle Toogood, 11 Vez. 517. Ex parte Christy, 10 Ves. 105. Ex parte Blagden, 19 Fez. 465. 2 Comen, 139, 173. 2 Mod. 662.
    Authorities cited against the motion, Valuami v. Noble, 3 Mer-riv. 593. Murray v. Williamson, 3 Binn. 135. Barne’s Notes, 146. Montague on Set-off, 9. Bull. N. P. 336. Dennie v. Elliott, 2 H. Bl. 587. Glaisier v. Hewer, S Term Rep. 69. Montague on Set-off, 11, (note.) Lanesborough v. Jones, 1 P. Wins. 326. Cooke’s Bankrupt Law, 568. 5 Vez. 108. Ex parte Stevens, 11 Ves. 24. Ex parte Hanson, 13 Vez. 232. Simpson v. Hart, 14 Johns. 63. Stat. Geo. 2, c. 22, s. 13. 8 Geo. 2, c. 24. Act of 1705, Purd. Dig. 126. Robinson v. Beall, 3 Yeates, 267. Wolf v. Beales, 6 Serg. & Rawle, 242. Roussel v. Ins. Co. of North America, 1 Binn'.- 429,'
   The opinion of the court was delivered by

Duncan, J.

I cannot consider the question foreclosed of the right of a defendant, who is sued with another, to set off a debt due to himself. The rule that the set off must be such, as the defendants could sue for in their own name, was a very narrow construction of the statutes of set-off. It savours more of technicality than of a liberal construction, and even in England the question is decided by showing in whom the beneficial interest is; and it is expressly so in Pennsylvania, as appears by Robinson v. Beall and others, 3 Yeates, 267, Boyd’s Executor v. Thompson’s Executors, 2 Yeates, 217, and Murray v. Williamson, 3 Binn. 135. At the trial my opinion was, that the indebtedness of the plaintiff to one defendant, was of itself, unless there was some superior equity in a third person, a subject of set-off by that defendant, although he had been sued with others, and might be set off on the trial under our act of assembly, which has been always considered as more comprehensive than the British statutes of 2d Geo. 2, c. 22, and Sth Geo. 2, c. 24. That opinion has not been changed, and is unchangeable; for if the very able arguments of the counsel of the plaintiffs could not change it, it cannot be shaken.

New trial refused,  