Leavenworth v. D. P. Lapham, & Co.

Hutchinson, Ch. J. after stating the case, as before recited, pronounced the opinion of the Court. The plea or pleas in offset, predicated upon the three notes, cannot be supported in this action, upon any grounds we can discover. It seems rather intended as one plea upon the three notes; for, though each is described separately, yet no promise is raised to the defendant upon either, till all three are described ; and the plea alleges a promise to pay all three to the defendant. But there are more incurable difficulties. None of the notes are payable to the defendant. One of them is neither payable to order or bearer. Upon this, they never could maintain an action or plead in offset in their own names against any person whatever. But there is one difficulty pervades the whole plea as respects these notes. They are plead as against the administrator of the estate of Levi Rood, deceased, with an averment that the note described in the plaintiff’s declaration ever has been, and yet is, the property of said estate; and also avers, that these notes, originally given to other persons, became the property of the defendant, by assignment, &c. since the decease of the said Levi; and that notice thereof was given to the said administrator of said Rood, and to the plaintiff, before the commencement of this action. Now this forms no claim against said estate in favor of these defendants, nor would it do so, if these notes had been negotiable, and ever so regularly assigned to the defendants after the decease of the said Levi Rood. All the claims for and against the estate of said Levi must be settled between those who were parties to those claims at the time of his decease. Two of these notes were given to oneCandless, and one to Cady; and it must be taken, from this plea, that they were the owners at the said time of his decease ; and, if this were so, they only could support the claims upon those notes before commissioners, or in a suit against his administrator. There is a further difficulty still. The action was commenced in favor of J. C. Thompson, as bearer of the note. According to the decision of this Court in Addison county, cited at the hearing, as this action is brought at common law, and not by virtue of our statute, page 144, the proviso of that statute gives no right to this offset of notes [208] SI§ne<^ by said Levi. This is spoken of by the counsel of the defendant as Judge Williams’ decision, and that upon P°int not material to the decision of the action. I was Dot Present when that cause was argued and decided, but, from the report, it is evident, that the decision upon that point was conclusive of the whole case. Though the Judge, in delivering the opinion, rests his own individual opinion more upon a' previous point. Though a statute lately passed, regulating such a case, the law, under which that decision was made, was in force when this action was commenced, and would govern this case also, so far as relates to the point now under consideration. And this applies equally to the last count in the plea in offset. — That being on a book account directly against said Eevi, this is' well plead as against him ; but is no plea to the action in favor of Thompson. There is no mutuality between the parties; and without it, no offset can be maintained, except in cases coming within the provisions of said statute upon negotiable notes, which governed the case of Martin vs. Trowbridge and others. See 1st vol. Vt. Rep. p. 477. The case cited from Chipman’s Reports,upon a jail bond, where an offset was allowed, where the claims were not legally mutual, was overruled in this county last winter. The equitable jurisdiction of this Court has, several times, been' exercised in compelling an offset of demands, liquidated by the judgement of courts of law and chancery, where there was no legal mutuality, but where the equitable ownership required such offset. See the case of Connable vs. Buckland, 2d Aikens’ Rep. 221. This was. also done in' Addison county, three years since, in a case which I don’t recollect to have seen reported. But the right of the defendant to file an offset, snd of the plaintiff td file ba’ck an offset of any demands he may have against the defendant, as regulated by the statute of offsets, where the jury are to find the balance in arrear from either party, can never be maintained and pursued to -any practical purpose in' an action at law, Unless the demands are legally mutual. A doubt might be raised, whether this action will lie at' all, upon the facts now before us, if plead in a different manner. We are not called upon to give any opinion up [209] on this point. But it is obvious, that, where an estate is insolvent, ana will pay but a few cents upon the dollar, the administrator must not be permitted to have his notes sued in the name of some third person, and thereby avoid the offset of mutual claims, existing between the parties at the time of the decease of the testator or intestate. Possibly a plea in bar, in such a case, might defeat the action altogether. The actions which may be brought under the 54th section of the probate act, cannot embarrass the offsets, because they are therein fully provided for. Wm. P. Briggs, counsel for the defendants. Henry Leavenworth, counsel for the plaintiff. The averment in this plea in offset, that the note belongs to the estate of said Levi, and the suit carried on for the benefit of said estate, Cannot affect the declaration, as it might if contained in a plea in bar, and was left unanswered. But, if it were plead in bar, that this note thus belonged to said estate, &c. and that the defendant had a just demand against said estate, like this book account offset, which he had a right to plead in Offset if the writ were brought in the name of the administrator of said Rood, possibly this might bar the action at law. Possibly, if the amount were large enough for Chancery jurisdiction, the defendants would be driven to Chancery for relief. But in some way such offsets must be had, and not be defeated by any transfer of the notes, or suits in the names of other persons, instead of the administrator. Upon the whole; the judgement of the County Court is affirmed.