Murray v. Williamson

• Decision Date: 06 October 1810
• Parties: MURRAY v. WILLIAMSON Administrator of GRAY.
• Court: Pennsylvania Supreme Court

3 Binn. 135

MURRAY v. WILLIAMSON Administrator of GRAY.

Supreme Court of Pennsylvania.

October 6, 1810

IN ERROR.

If the defendant has an equitable demand against the plaintiff, as for instance a bond given by the plaintiff to a third person and by him informally assigned to the defendant, the court will permit him either to set it off against the plaintiff's demand, or give it in evidence under the plea of payment. It is not essential to a set-off that the defendant should be able to sue for the demand in his own name.

There is nothing in the defalcation act of Pennsylvania to exclude a set-off either by or against an executor or administrator. On the contrary that act has been uniformly construed to admit it.

BILL of exceptions to the opinion of the Common Pleas of Cumberland county.

The action was covenant upon an indenture of lease, to recover rent in arrear at the death of Gray the plaintiff's intestate. The defendant Murray pleaded covenants performed, and payment; and on the trial of the cause, after proving that in the lifetime of Gray, he, the defendant, had in his possession as his property, a certain single bill under the hand and seal of Gray executed to one John Conolly, and by him assigned in the presence of one witness to the defendant, he offered to give the bill and assignment in evidence under the plea of payment, as an answer pro tanto to the plaintiff's claim. But this evidence being objected to, was overruled by the court, and the defendant tendered a bill of exceptions.

Duncan for the defendant in error, cited Hutchinson v Sturges ^[a] , Shipman v. Thompson ^[b] , Whitaker v. Rush ^[c] , Bull. N. P. 179. Cramond v. The Bank of the United States ^[d], 1 Selw. 138.

Watts for the plaintiff in error.

TILGHMAN C. J.

Murray was indebted to Gray in his lifetime for rent. He had also in his possession a single bill from Gray to John Conolly, assigned to him during the life of Gray in such a manner as to give him the complete equitable property; but it was not assigned according to the act of assembly, so as to enable him to bring an action in his own name. This action was brought to recover the rent, and the defendant under the plea of payment with leave & c. offered to give the single bill in evidence, which was rejected by the court, and on this the bill of exceptions is founded. The plaintiff in error contends that the evidence was admissible, either as a discount, or as an equitable defence, on which he would have been relieved in a court of Chancery. The counsel for the defendant in error, in the opening of his argument, denied that under our act of assembly, there can be a defalcation when either of the parties is an executor or administrator; but he did not persist in it, and certainly, the construction of the act has been uniformly to the contrary. This objection therefore is out of the question. If the single bill had been assigned in the presence of two witnesses according to the act of assembly, the defendant might certainly have availed himself of it, by way of defalcation. I see no good reason why he may not do it, as it is. It is stated in the bill of exceptions, that the single bill was the property of Murray. The case is much stronger in this court, than in the English courts of common law; because here an equitable defence is pleadable. But even the courts of common law have recognised the equitable owner of a chose in action, though the action was brought in the name of another for his use. In Winch v. Keeley, 1 D. & E. 619, where the plaintiff was a bankrupt, the court sustained the action for the use of another person, to whom the plaintiff had made an assignment of a chose in action prior to his bankruptcy. In Rudge v. Birch, Mich. 25 Geo. 3. K. B. cited 1 D. & E. 622, the action was debt on bond, the defendant pleaded that the bond was given to the plaintiff for the use of A, for a debt due from the defendant to A, and that A at the time of the action brought was indebted to the defendant in more than the amount of the bond; held a good plea on demurrer. The same principle was established in Bottomley v. Brooke, cited 1 D. & E. 622. It appears by some of the cases cited on the part of the defendant in error, that the debt sued for, and the debt set off, must not be in different rights. For instance, if the plaintiff sues as executor, the defendant cannot set off a debt due to him from the plaintiff in his private capacity, or vice versa; but that is not the present case. Here the plaintiff sues as administrator; and the debt offered to be set off, is due from the plaintiff's intestate. Both are in the same right. But it is immaterial to the defendant, whether he avails himself of this defence by way of defalcation strictly speaking, or on the ground of equity. It would be against equity, that the defendant should be compelled to pay this debt; when there is a debt due to him in equity from the plaintiff's intestate. It not only subjects him to the expense and delay of a new action, but possibly to the loss of part of his demand, in case of a deficiency of assets. I shall gladly embrace every principle which prevents multiplicity or circuity of action. Justice is done to the plaintiff, if he receives what is due to the estate of Gray from the estate of Murray, deducting all legal or equitable debts due from the estate of Gray to the estate of Murray. I am of opinion therefore, that the evidence offered by the defendant was improperly rejected, and the judgment of the court of Common Pleas should be reversed.

YEATES J.

There is no ground for alleging, that set-offs cannot be established in suits brought by executors or administrators. It has been done repeatedly; and it cannot be objected thereto, that it disturbs the due course of administration of the...