
    Brown’s Administratrix v. Garland & Others.
    October Term, 1793.
    Sale of Property by Administrator — Bonds Bought by Defendant after Death of Testator — Right to Set-Off against Purchase Price. — An administrator having advertised a sale of the property of his intestate, offering to purchasing creditors, a discount of five per cent. The defendant, (who was not a creditor.) purchased at the sale, and gave his bond for the amount. — upon the plea of payment to an action on this bond, the doienaant ought not to be permitted to oH-set bonds, due by the intestate in liiw lile time, and -which were assigned to the defendant since the institution of the suit, although he had given six months previous notice of the off-set, and also offered, at the trial, to prove a suiííciency of assets to pay the debts, and tendered the costs of the. suit. The advertisement vras coniined to creditors who should purchase, which the defendant was not.
    The appellant instituted an action of debt In the District Court of Richmond against the appellees, (stiling herself, administra-trix of W. B. Brown) upon a bond taken to herself as administratrix. The declaration is in the debet et detinet — Plea, payment. The defendant Garland having given six months previous notice of offsets, offered as such at the trial, two bonds due from the intestate, and which had come to his hands by assignment since the institution of this suit- -also two receipts sig-ned by the plaintiff, the one for money, and the other for a bond due by the intestate, and assigned to the same defendant; all which offsets had been acquired since the institution of this suit. They also produced in evidence an advertisement of the plaintiff’s, offering for sale the property of the intestate at public auction, and agreeing to allow' a discount of live per cent, to such of the creditors of the estate, as chose to purchase at the sale. They also offered at the trial to prove a sufficiency of assets to pay the debts, and tendered the costs of suit. All these facts appeared in a bill of exceptions taken by the plaintiff to the opinion of the court, admitting the testimony — -verdict for the defendant and appeal.
    Washington for the appellant.
    The defendant at common law could shew nothing in discharge of a bond but something •of an equal dignity with itself, such as a release, &c. offsets are permitted in -England by a statute, which is not in force here. In like manner, the defendant is permitted by a “statute in that country as well as by the law of this, to plead payment. But there is no law of this state which authorises offsets. If this i were a question in Westminster Hall, i1 would be decided against the appellees under the English law; for the debt to be offset must be in the same right as the debt demanded. Thus in an action by the as-signee of a bankrupt, a debt due from the bankrupt cannot beset off. Wils. Rep. 155. So where after the testators death the defendant received rents which became due before, he was not permitted to set off against the claim of the executor for those rents, a debt due to him from the testator. —-Shipman v. Thomas, Bspinass 274. The reason is, that where there are mutual debts, there must be mutual remedies; and unless there are, the doctrine of offsets cannot apply-
    So a man cannot set off a debt due in the right of his wife, against one due from himself. Bull. 179, 180 — 3 Atk. 691.
    Though the bond in question were actually given for property of the testator’s sold to him (which does not appear) yet it became a debt due to the executrix — she must sue in the debet et detinet, and is accountable for the amount of the property so sold, to the persons entitled to demand it. The remedies therefore are not mutual — The debts are not mutual — and consequently the offsets inadmissible. If they were, it might subject the appellant to a devastavit in cases of debts of superior dignity and an insufficiency of assets.
    Warden for the appellees.
    The act of assembly 22 Geo. II, G. 27, $ 6, which jiermits the defendant to make all the discounts he can, is more comprehensive than the statute relating to offsets, and sufficiently so to embrace the present case. But I rely principally upon the advertisement, as imposing upon the appellant an obligation to receive the bonds in question in discharge of the debt for which the suit was instituted. He cited, 3 Wils. 396, 2 Bur. 821 — 1229.
    Marshall on 1he same side. — The first question in this cause is, whether the discount offered is proper, under the act of Assemblj’ — 2dly, if not, what operation the advertisement will have upon the case.
    1st, The words of the act are very extensive ; much more so than the statute of offsets. The adjudications in England therefore are not applicable, because the statute speaks of mutual debts which our law does not. In the present case, the bond being given for property of the testator sold, the money when received is to be administered as other assets, and may therefore be properly subjected to the discount insisted upon at the trial.
    “'MERGER, J. — -Ought not the defendant to have pleaded this offset? The plaintiff might then have replied, no assets. — That it was not given for property of the testator, or the like; in which case the issue would have been upon the proper point.
    Marshall. The act of Assembly does not require it to be pleaded, but declares that the discount if proved, shall be allowed.
    But 2dly, the advertisement strengihens the case very much, because it creates an obligation on the appellant to admit the discount, is a tacit admission of assets, and of course does away the danger of producing a devastavit.
    Duval on the same side, perhaps the ap ■ pellee might have been induced to lake the assignment of these bonds in consequence of the advertisement, and therefore the rejection of them as a discount would be a fraud upon him.
    Washington in reply.
    If the defendant upon the plea of payment, can give in evidence offsets of this sort, it is impossible for the plaintiff to know how to meet the plea at the trial. — The bonds may be void, or paid off.
    In the construction of the act of Assembly, the question, what are the proper discounts is still left open for the court to decide upon, and no better, or more just rule can be adopted than that, which prevails in cases of offsets in England. By confining it to mutual debts, it prevents confusion at the trial, or the possibility of eventual injustice to any of the parties.
    The advertisement does not better the situation of the appellee, because neither of them were purchasing creditors; and to such only, are the benefits offered or intended. If the offset were in this case permitted, the appellant might be subjected to this inconvenience. A purchaser at the sale gives his bond, not claiming to be a creditor, for if he were, he would be entitled to a discount of five per cent, and ought not to have given a bond at all. The debt belonging to the administratrix and she being accountable for the amount to those intitled to distribution, she may have paid them, and afterwards upon bringing suit upon the bond, the defendants obtain assignments of debts due from the intestate to destroy the demand.
    As to the defendant’s offer to prove assets, it does not better the case, because it not being a point in issue, the plaintiff could not be prepared to meet such evidence.
    
      
      The principal case is cited in foot-note to White v. Bannister, 1 Wash. 166 ; Dangerfield v. Bootes, 1 Munf. 531, 533; Pulliam v. Winston, 5 Leigh 337 ; Washington v. Castleman, 31 W. Va. 834, 8 S. B. Bep. 604. See monographic note on “Executors and Administrators” appended to Bosser v. Depriest, 5 Gratt. 6-
    
   CARRINGTON, J.

delivered the opinion of the court.

The court considers the motive of the advertisement, which was only to enhance the sales by offering the inducement of five per cent discount to the purchasing creditors.

*But Garland not being of that description, can claim no benefit under it. The advertisement therefore is out of the question; and without it, there is no doubt, but that the admission of the board as offsets was improper. Neither the advertisement, nor the bonds ought to have been given in evidence to prove a payment, upon the plea and issue joined in the cause.

Judgment reversed and a new trial awarded.  