Commonwealth v. Clarkson

The opinion of the court was delivered by Gibson, C. L Mr.' Passmore, while in office, received fees which were due to the sheriff, and the sheriff during the same period, received fees which were due to Mr. Passmore; and the question is, whether these cross demands extinguished each other by operation of law, or whether that effect was produced for the first time when actual defalcation, took.place by the act of the parties? Defalcation was unknown at the common law, according to which, mutual debts were distinct and inextinguishable except by actual payment or release. But the statute of set-off .which was intended to prevent circuity, has been held to operate on the rights of the parties before action brought, or an act done by either of them. In Murray v. Williamson, (3 Binn. 135,) a set-off was sustained against an administrator, 44 because,” as Judge Ye ates well observed, 44 the sum really due at the death of the party is the true debt.” On no other, principle could there be a set-off against the representative of an insolvent decedent; instead of which the defendant, would have to pay the.demand against him first, and then come in with the other creditors for a dividend of his own money according to the degree of his debt. This we see is not the case, every thing but the balance having been previously extinguished. We have other instances qf the same principle, where it did not depend on positive law. . In Griffith v. Chew, (8 Serg. & Rawle, 17,) where the obligee in a joint and several bond, had appointed an administrator of one of the obligors, having assets, to be one of his own executors, it was held, that the debt was paid presently, the law having made the application without waiting for the det of the party. On the same principle a retainer, which was formerly pleaded specially, may now be given in evidence on plene administravit, the law having administered the assets in the'hands of the executor by payment of his debt. The application of this principle is consistent with both justice and convenience, particularly where the party to whose use the money was received, had no property specifically in the coin dr bills of which it consisted, and to ■whom a recovery could not be more beneficial than á retainer of the ■money already in hand. According to both reason and authority, therefore, the fees received by the sheriff were virtually in the hands •of Mr. Passmore, the instant that he and the sheriff became réei [294] procally holders of each other’s funds; and, as this occurred while Mr. Passmore was in office, the fees in question are subject to taxation. ' Judgment affirmed.