
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1809.
    Administratrix Schmidt v. W. and E. Crafts.
    In an action by an administrator, the defendant shall not be permitted to-set off a demand against the intestate, which was not originally due to the defendant! but which he acquired after the death of the intestate j as it might disturb the order of distributions directed by law to be made of intestates’ estates.
    Action on a note of hand, due plaintiff’s intestate, who died partially insolvent. After his death, the defendant obtained cer. tain bank checks, which he set up against the action, by way of discount, and the same discount was allowed by the jury, although objected to by the plaintiff.
    Motion to set aside the verdict.
    Cheves, in support of the motion,
    contended, that no discount can be legally set up against the claim óf a testator, or intestate, which did not exist in his lifetime, as a claim in behalf of the party offering it in discount; otherwise, much speculation and injustice •would take place, and the course of distribution might be changed. The estates of deceased persons are assets id the hands of the legal representatives, to be distributed according to certain fixed rules of law. The funds stand pledged to pay the debts in the due course of administration. If such discounts are allowed, debts of an inferior degree may be satisfied, in preference to debts of a superior degree. The discount law ought not to be construed to work injustice, and oppugn other wise provisions of law. Cited Lex Mercatoria Americana. Set offs must exist prior to bankruptcy. Cowp. 133. Willis’ Rep. 170, 575. Mort. on Set Offs, 34, and Appendix. Bull. ISO.
    Drayton, contra,
    
    insisted, that the discount law authorized the set off; and that the authorities cited, went only to shew that the set off must be a good cause of action, or demand, at the death of the testator, or intestate. The act of distributions is directory; but it cannot restrain the operation of a co-existing law. Cited 3 Burr. 1-521. 1 Burr. 452, 22.
   Waties, J.,

declared the opinion of the whole court, 16th January, that it would be incompatible with the wise provisions of the act of distributions of 1789, to give to the discount law the construction contended for by the defendants, and would operate injustice, and encourage peculation. That it could never have been intended by the makers of the discount law to extend its operation to such a case.

Motion granted.  