Whaley v. Cape

Opinion of the court delivered by Wash, J. This was an action commenced in the circuit court by petition and summons by the appellants against the ap-pellees on a single bill obligatory. The defendants in the c‘l’cu't court pleaded payment and set-off. The plaintiffs in the circuit court joined issue on the plea of payment and demurred to the pica of set-off. Thedemurrer was over-ru^e<^ anc* the issues were found by the court, sitting as a jury for the appellees, and on the plea of set-off, a judgment was given for the defendants against the plaintiffs the circuit court; to reverse which, the plaintiffs below have come by appeal into this court. Ihe plaintiffs were administrators of one William Whaley deceased, promissory note sued on was given to them in fbat character. Styling them administrators &c., the defendants were distributees of the estate of William Whaley deceased. — At the February term of the county court of Washington county 1835, Whaley and Blackwell, the administrators oí William Whaley deceased, settled up their administration and were ordered by the court to make distribution of the balance remaining in their hands to the heirs and distributees of said William Whaley dec’d. — the appellees were two of the heirs and distributees, and the sum set-off against the appellants, was the amount of their joint portions of the sum. ordered to be distributed by the county court as aforesaid.— The plaintiffs on the 5th of May 1835, commenced their action against the appellees. The question submitted for consideration is, whether the demurrer to this plea of set-off-was rightly overruled or not. Our statute regulating set-off, provides‘‘that if two or moie persons be mutually indebted to each other, by judgments, bills, bonds,.bargains,promises, accounts or the like, and one of them commences an action in any court, one debt may be set off against the other, notwithstanding such debts [234] may be deemed'in law of a different nature &c.” The sum to which the appellees were entitled under the order of distribution by the county court, might have been collected from the appellants, after the Feb. term of the county court 1835,on execution, or the payment enforced by attachment. It was then a debt due by judgment, or by an order or decree so very like a judgment that the statute would reg ird it in the same light. It has been objected that the distributive share to which each of the appel-lees was entitled under the order of the county court, was the separate debt due from the appellants to each individually, and could not be jointly set off, against the joint debt sued for by the plaintiff. The counsel for the appellants has not sustained himself m this position. It has been held that a set offmay be well pleaded, whenever the plaintiff is individually liable for the debt set off. —2. Esp. ca, 594 — 3 Stark. Hv. 1316. And it is clear from the 61st and 64th sections of the administration law — Rev. Code p. 117 and 119, that the appellants after the order of distribution of the county court, were personly responsible to the distributees out of their own proper goods, upon their failure to pay over the sums respectively due. Per ju<jge Tompkins dissenting, The separate de-could^ot be united and plea-¿ed as an offset to ’ ■ Several authorities have been cited by the counsel for the appellees, which maintain that in an action on a joint note, the individual debts due to either of the defendants may be set off. — 2 Tyler’s Rep. 391. — 1 Marsh.5s Rep. 20 — 12 Serg. & R. 252. We cannot see that any injury is likely to arise from this doctrine, but on the contrary, that justice and convenience may be often promoted and circuity of action prevented thereby. It has been also objected by the counsel for the appellants, that there is no mutuality in the indebtedness of the parties; we think differently. The statute does not intend that the parties must be in like condition to coerce the. payment of their respective debts, but simply, that the indebtedness shall be such as to entitle the person wishing to set it oil, to his action at law. Upon the whole matter, therefore, the judgment of the circuit court is affirmed with costs.