Palmer v. Green

Hosmer, Ch. J. The defendants objected, in the first place, that a legal book, in support of the plaintiff's claim, has not been exhibited. The plaintiff's testator never made a charge on book against the defendants; but at the trial, the defendants exhibited their book, and upon this, the items of the plaintiff's demand were credited. Were it res nova, the objection made would be entitled to much consideration; but the law on this subject is too well settled, at this time, to be disturbed. From the case of Leavensworth, admr. v. Phelps, Kirby 71. in 1786, it has been considered established law, that a book of the plaintiff, comprising charges regularly made, is not indispensable to his recovery; although an omission to make such charges, is presumptive evidence against the demand. [18] It has been insisted, that the defendants are released from the plaintiff’s demand, by parol agreement between the plaintiff and Reuben Palmer, one of the defendants. Such an agreement was a mere nudum pactum, destitute of any legal operation. It constitutes no defence ; and was rightly disposed of, by the judge. Had there been a release of one of the defendants, by the act of the party, undoubtedly it would have enured to the benefit of both. The parties submitted their controversies in writing ; and parol testimony was offered to shew an enlargement of the powers of the arbitrators, including a subject not mentioned in the written submission. The offered testimony was rejected by the judge. From the motion it does not appear, that the parties first made a written submission, and afterwards by parol conferred additional powers; but it is merely said, that “ the defendants offered to prove, by the testimony of Comstock Chapel, that it was also agreed, without specifying when such agreement was made; and it is perfectly compatible with this statement, that the written submission and the supposed agreement by parol, were contemporaneous. If such were the fact, the testimony by parol could not be received, without varying the effect of the written submission, which must be presumed to comprise the whole intention of the parties. Kyd on Awards, 141. 149. Besides, the award conclusively shews, that the only submission acted on, was the one in writing. The arbitrators found, that there was due to Reuben Palmer from Christopher Green, 49 dollars, 80 cents, having examined their accounts. From this it is very apparent, that the private accounts of the parties were settled by the award, but that no reference was had to the company accounts. As it does not appear, that there was any submission by parol, subsequent to the one in writing, or that there was any award otherwise than on the written submission, the testimony offered was rightly rejected. The reasons of the court of probate, offered to shew a set-off made by the commissioner on the estate of Reuben Palmer, deceased, were held to be inadmissible testimony; and that they were irrelevant and without effect, is perfectly unquestionable. The case is merely this. Christopher Green and Reuben Palmer owed a sum of money to the estate of Reuben Palmer, deceased; and the same estate was indebted in an equal or superior sum to Green. The plaintiff induced the commissioners to make a set-off of the separate debt due to Green, [19] against the joint debt due from both the defendants. Had the commissioners authority to make this set-off ? It must be admitted, that the jurisdiction of commissioners regarding set-offs, is co-extensive with that of a court of law and of chancery ; but there is no reasonable pretence, that either of these courts, in the preceding case, could have awarded a set-off By the statute on this subject (p. 43.) the right of set-off is limited to mutual debts between the plaintiff and defendant; and the same law exists in England by statute 2 Geo. 2. ch. 22. s. 13. and without any statute, in the neighbouring state of New-York. By the decisions of Westminster-Hall and of the state of New-York, a joint debt and a separate debt, are not mutual debts, and cannot be set off against each other. Montagu on Set-off, 23. Fletcher v. Dyche, 2 Term Rep. 32. Sherman v. Crosby, 11 Johns. Rep. 70. Simson v. Hart, 14 Johns. Rep. 63. Courts of equity regarding set-offs follow the same general rules as are established in courts of law; and to authorize them, they require that the debts be mutual. Whitaker v. Rush, Amb. 407. Ex parte Stephens, 11 Ves. 24. Ex parte Hanson, 12 Ves. 346. They must exist between the parties in their own right, and be of the same kind and quality, clearly ascertained and liquidated. Addis v. Knight, 2 Meriv. 117. 122. Duncan v. Lyon, 3 Johns. Chan. Rep. 351. In Dale and others v. Cooke, 4 Johns. Chan. Rep. 11. it was adjudged, that joint and separate debts cannot be set off against each other in equity, any more than at law; and that to authorize such proceeding, the debts must be mutual, and due to and from the same persons, in the same capacity ; and that if to this rule there be any exception, it must arise under particular circumstances ; as where there is a clear series of transactions, in which a joint credit is given. Vulliamy v. Noble and others, 3 Meriv. 393. 618. In respect of bankruptcy, the jurisdiction of the Chancellor, in England, concerning set-off, is derived from certain statutes ; (2 Madd. 512. 515.) and although of the rule of law forbidding a set-off between joint and separate debts, there has been some relaxation, in cases under the above-mentioned statutes; yet the departure from the general rule was first doubted, and then over-ruled. Ex parte Twogood, 11 Ves. 517. Ex parte Han [20] son, 12 Ves. 346. S. C. on the Master's report, 18 Ves. 232. Addis v. Knight, 2 Meriv. 117. 121. From the cases to which I have referred, the late learned Chancellor o the state of New-York came to this just conclusion, that joint and separate debts cannot be set off against each other in equity any more than at law. The application of the principles established to the case before the Court, is obvious. The debt of the defendants to the plaintiff as executor, and that of the plaintiff in this capacity to Green, are not mutual; are not due to and from the same persons, in the same capacity. The capacity of one is individual, of the other representative; and the debt of one is joint, and of the other several. It necessarily results, that the commissioners decided without having jurisdiction of the subject matter of their determination; and that the decision of the judge at the circuit was correct. The other Judges were of the same opinion, except BRISTOL. J., who dissented on the point of set-off. New trial not to be granted.