
    Fisher v. Cassidy et al.
    
      Action on an administration bond — Equitable set-off by a surety against the claim of a distributee, who is also a distributee of the estate of a co-surety.
    
    (Decided May 17, 1892.)
    Error to the Circuit Court of Muskingum county.
    
      W. H. Ball and F. A. Seaborn, for plaintiff in error.
    
      H. F. Auchauer, for defendant in error.
   By the Court :

Action by a distributee on an administration bond. The bond had been executed by Addison Palmer, as administrator of the estate of Asa R. Cassidy deceased, with Joseph Fisher and Nancy Cassidy, his sureties. Fisher, by way of counterclaim, set up the decease of Nancy Cassidy, his co-surety, the settlement and distribution of her estate, and the receipt by the plaintiff of $23,75, as one of the distributees of her estate, which he asks to have set off against the claim of the plaintiff on the bond.

It is clear, that, if Fisher should pay the full amount of the claim of the plaintiff, he would have the right to recover one-half the amount so paid, from the estate of his co-surety, Nancy Cassidy, deceased; and, it is also clear, that, under our administration law, and the decision in Camp v. Bostwick, 20 Ohio St., 337, he would have the right to recover on the same claim against the plaintiff as a distributee, to the extent of the assets received by him from the estate of the co-surety ; and it therefore follows, that he has, in this action, the equitable right to have the amount he might recover of the plaintiff, set off against the claim of the latter upon the bond.

Judgment reversed and cause remanded to the court of common pleas for further proceedings upon the equitable set-off, set up by Fisher in the “ second defense " of his answer.  