Solliday v. Bissey

Jan. 28. Rogers, J. We think the Court was in error in refusing evidence of set-off. The testimony is offered by the defendant Solliday, with the assent of the co-executor Boileau, so that the objection that it is not between the same parties, otherwise fatal, is removed. The defendant brings himself within the benefit of the principle settled in Tustin v. Cameron, 5 Whart. 379; Wrenshall v. Cook, 7 Watts, 464. It is ruled that in an action on a promissory note given by the defendant in favour of the plaintiff,, the defendant may set off a debt by the plaintiff to a company or partnership qfjdfich the defendants were members, the other members of the partnership authoriziSg'the same. The case must therefore be considered aside of this exception, and the only remaining obstacle in the way of the defendant is the objection that the money offered to be set off was due to Solliday and Boileau, as executors. In this view of the case, it is an important point that the property was leased to the plaintiff after the death of the testator, and although to them, as executors, yet the debt is due on their own contract, and in their own right. In all cases of promises, express [350] or implied, made to or by an administrator after the death of an intestate, and the same holds as to executors, the action lies by and against the administrator, personally: 8 S. & R. 402; 10 Ib. 10; 2 Penna. 490; 3 Barr, 567; 2 Rawle, 185; 5 Ib. 137. Those exceptions being removed, the case presented falls within the principle decided in Wolf v. Beals, 6 S. & R. 244. It is a general rule, as there truly said, that a person having the right of action may set off a debt due to him as a trustee against a debt due by him in his own right.' The rule clearly deducible from Wolf v. Beals is, that persons having a right of action, or perhaps the right of property, are entitled to set off. Thus a debt to a party as trustee, or a certain given trust, may be set off in an action against either. Here Solliday and Boileau act in the capacity of trustees for the beneficiaries, and may unquestionably maintain suit in their own names, disregarding the appellation of executors, which may be considered as surplusage. Three exceptions are filed to the charge, all of which we have examined and found untenable. The charge we deem correct in. every particular, and affirm it for the reasons so clearly given by Judge Krause. As, however, the Court erred in rejecting evidence of set-off, the cause must be remanded for another trial. Judgment reversed, and venire de novo awarded.