Thomas v. Hill

• Decision Date: 31 December 1848
• Citation: Thomas v. Hill, 3 Tex. 270 (Tex. 1848)
• Parties: BENJAMIN R. THOMAS, Appellant, v. ISAAC L. HILL, Administrator of BENJAMIN THOMAS, Deceased, Appellee
• Court: Texas Supreme Court

3 Tex. 270

BENJAMIN R. THOMAS, Appellant,

v.ISAAC L. HILL, Administrator of BENJAMIN THOMAS, Deceased, Appellee

Supreme Court of Texas.

December Term, 1848.

Appeal from Austin County.

Where the plaintiff sued to recover money alleged to have been expended by him in payment of debts of an estate of which he was then the administrator, and the defendant (the administrator de bonis non) pleaded in reconvention, claiming of the plaintiff the hire of certain negroes and proceeds arising from the sale of property belonging to the estate, which he alleged the plaintiff had converted to his own use: Held, that the matters thus pleaded by defendant did not come within the description of such as are prohibited from being pleaded in set-off by the 4th section of the act of 1840, “allowing discounts and set-offs.” [5 Tex. 501;6 Tex. 406;7 Tex. 55;11 Tex. 28.]

The object of the law in allowing set-offs is to avoid a multiplicity of actions. Where, therefore, the respective demands of the parties are of such a nature as to admit of their being all settled in one action, the law intends that this shall be done.

The right of the plaintiff, in general, to take a nonsuit, is unquestionable; but an application to this effect comes too late after the defendant has pleaded in reconvention.

The appellant brought suit in the district court to the fall term, 1843, alleging that he administered on the estate of Benj. Thomas, deceased, and that, while acting as administrator, he paid debts of the estate to the amount of eleven hundred and forty-eight dollars; that he afterwards resigned the administration, and, that after his resignation, he presented his claim to the administrator de bonis non, who refused to allow it.

At the first term the defendant answered by a general denial, and a plea in reconvention, in which he claimed to recover of the plaintiff sixteen hundred dollars for the hire of negroes belonging to the estate of the decedent, and two hundred dollars, the proceeds of the sale of property of the estate, alleged to have been withheld and appropriated by the plaintiff to his own use. The defendant subsequently amended, claiming of the plaintiff the proceeds of several notes belonging to the estate, and alleged to have been received by the plaintiff while administrator. The plaintiff replied to the plea in reconvention, that the matters so pleaded were not cognizable in the district court, but only in the probate court. He also excepted to the plea upon the ground that the matters therein contained were not the proper subject of set-off and reconvention under the statute.

The exceptions were overruled, and he then asked leave to take a nonsuit, which the court refused. At the trial at the fall term, 1848, the plaintiff asked the court to instruct the jury, “that in an action founded on a certain demand, the defendant cannot, under the plea in reconvention, give evidence of any unliquidated demand.” This instruction the court refused. There was a verdict for the defendant for seven hundred and forty-three dollars and thirty seven cents, upon which the court gave judgment and the plaintiff appealed. The appellee became administrator de bonis non of the estate after the commencement of the suit.

RIPERS for appellant.

MUNGER and HARRIS for appellee.

Mr. Justice WHEELER, after stating the facts, delivered the opinion of the court.

For the appellant it is insisted:

1. That the district court had not jurisdiction of the case.

2. That the court erred in overruling the plaintiff's exceptions to the defendant's plea in reconvention; and in refusing the instruction asked by the plaintiff.

1. The jurisdiction of the district court was invoked in this case by both parties previous to the adoption of the state constitution. By the constitution of the republic, art. 4, sec. 3, it is provided that the district court...