Minich v. Cozier

The opinion of the court was delivered.by Tod, J. — We see no error in this record. ■ There is a simplicity in the law which, to the extent here asked for, cannot be broken in upon. It seems agreed, that a defendant in a suit by administrators is not permitted, by the. general rule, to set off a debt due to himself from one of the administrators, altogether unconnected with the estate in right of which the suit is brought. But it is said, here are numerous facts proposed to be given, to take this case out of the rule. Now, to my apprehension, the very multiplicity pf the facts offered, would seem to forbid the attempt.. Not only is the debt said to be due from Stroup to be proved, but-a settlement of the estate and a distribution of the assets, though the suit itself is an effort to recover a part of the assets, and one of the pleas is payment, and twelve more bonds are yet claimed as payable from the same defendant. Next is to be proved a settlement between the two administrators; then the full payment of all debts; the full payment, of all legacies; and next, the means by which the bond in question, though given to the testator in his life time, had become the separate property of one of the administrators. Admitting that Minich, the other administrator, being in court, might have an opportunity to controvert the proof offered, as far as it denied his interest, and thus be allowed the means of prosecuting two contests at á time; one against his co-administrator and co-plaintiff, and the other against Cozier, the defendant; yet, what shall be said to legatees, to creditors, or those who may claim to be such, and may not be willing, that full satisfaction of their demands shall be made out against them, in a suit between other men, but whose rights may be decided on without a hearing; unless eafeh one, upon notice given, may be permitted to come in and defend for himself? .Whether they come or not, I apprehend, the jury and the court would not find themselves the less entangled in a complication of issues of fact and disputes, in their own nature, [114] wholly unconnected with each other, brought together, against all precedent in the law, by this plea of set-off. Besides, though the defendant’s first plea is on his own account, payment by himself, yet, he offers the set-off in the character of assignee of Stroup; then, if he succeeds, that is, if he pays his own debt to the administrators by the set-off, he either gains for himself an unequal distribution out of the insolvent estate, or he puts a great difficulty in the way of calling him to account as assignee; it being next to impossible to know from the record, if the jury make a deduction, whether they make it under the plea of payment, or under the set-off. 'As to the supposed hardship and the risk of the money going'possibly intq the hands of the insolvent administrator, clearly this administrator may be called upon to give good security, if he has not already given it, or may be removed from the office. The hardship appears the very same upon the defendant, that it would be if Stroup had never been administrator at all, or being administrator, had been removed. There was another exception to the opinion of the court below. The bond sued on having been given in part pay for land, the defendant, to show a failure of consideration, produced the record of a recovery in a writ of dower out of the same land. The plaintiffs were permitted to repel this evidence, by showing a release by the demandant in dower, though executed long after this,action was brought. It was assigned for error, but giyen up without argument. Judgment affirmed*