Whedbee v. . Reddick

RodmaN, J. As the note • was ' assigned to the plaintiff after it became due, he took it subject to all counter claims of the defendant which accrued to him before notice of the assignment. The note is payable to ’Winborn and Cowper, executors of Abram Reddick, and the money loaned to the defendant is admitted to have been a part of the estate of Abram Reddick. It is alleged by the defendant and denied by the plaintiff, that at the making of the note it was expressly agreed in effect that the defendant might offset it by any sum w'hich might be due him as one of the legatees of Abram Reddick. Independent of any express agreement to that effect, we think that any sum which upon the settlement of the estate of Abram Reddick shall be found payable to the defendant will constitute an equitable counter claim. The demurrer to article nine of defendant’s answer is therefore overruled. We think that the Judge below should have directed an account to be taken of the estate of Abram Reddick, and of the dealings of his executors therewith, in order to ascertain how much if any thing is owing to defendant from that estate. The executors would be proper parties to the taking of this account, otherwise they would not be bound by it. We think also that if the executors so choose, they are entitled to have all persons interested m the estate made parties so that all may be bound. The Superior Court (in term) has thus incidentally jurisdic *524 tion to take the administration account. Judgment reversed and case remanded to be proceeded in in conformity to this opinion. PER Curiam. Judgment accordingly.