
    *Isaac Hazlehurst and Henry Sparks, executors of Henry Darrah against Andrew Bayard.
    D. procures a policy of insurance to be made on a vessel for himself and others concerned in the same, and on a loss his executors recover judgment against the underwriter B who had before obtained judgment against D. B is entitled to a set-off, though it should appear that O owned half of the vessel.
    This was an appeal from the decision of the Chief Justice on a dispute which came before him in the vacation, respecting a set-off.
    The facts were these : — The plaintiff’s testator effected a policy of insurance on the schooner Lydia, Gideon Olmstead, master, for himself, and others interested and concerned in the same, which was underwrote by the defendant. The vessel was con - demned in a West India Court of Admiralty, and a suit brought on the policy, which was submitted to reference.
    It appears before the referees that on the schooner being sold under the decree of the Court of Admiralty, she was bought in by the captain at a low and inadequate price, of which the defendant complained greatly; but the plaintiff insisted that they were not to suffer by any misconduct of this nature in the captain ; and of this opinion were the referees, who awarded the sum of 105I. ns. id. to the plaintiff, on which judgment was entered.
    The defendant had some years before, in the life time of Darrah, recovered judgment against him for a considerable sum, and cited the plaintiffs lately in the vacation to shew cause why the present sum awarded should not be defaullced out of the unsatisfied judgment; and on hearing, the Chief Justice determined that the set-off should be made.
    In support of the appeal, it was now shewn that one moiety of the schooner only belonged to the plaintiff’s testator, and the other moiety was the bona fide property of Gideon Olmstead the captain at the time of the subscription of the policy; and Mr. M. Levy in behalf of the latter, contended that it would be highly unjust to subject his proportion of the sum recovered to a set-off, which as the testator’s affairs were much embarrassed, might be wholly lost. The conduct of Darrah or his executors ought not to affect his interests. The insurance was made as much on his account as Darrah’s ; he is entitled to one half of the damages found, and might have brought a suit in his own name.
    Mr. Ingersoll for the defendant.
    If Olmstead was the real owner of one half of the schooner, and had brought a suit in his own name on the policy, o.ur defence would have been fully open, by shewing his improper conduct in purchasing the vessel at a great under-value, &c. against every principle of good * 1 *faith ; but it is now too late to urge this as an objection. The action has been instituted in the names of the executors of Darrah, and has proceeded to judgment; Olmstead has ratified it by his own acts; we were told before the referees, that the misconduct of Olmstead should not prejudice the plaintiffs ; and having this matter determined against us, we are again informed, that Olmstead ought not to suffer by the acts of Darrah or his executors.
   Yeates, J.

delivered the opinion of the court. Circumstanced as this case is, we can know no other parties in this suit, than those mentioned in the record. Olmstead intrusted Darrah to make the insurance, and has permitted the suit for the defendant’s whole subscription to proceed to judgment, without a claim on his part. It is perfectly well settled, that judgments may be set off against each other, (3 Wils. 396, 2 Bl. Rep. 669,) and we can see no reason why a defalcation should not take place in the present instance.

The decision of the Chief Justice must be confirmed.  