Whaley v. Cape
| Decision Date | 31 October 1835 |
| Citation | 4 Mo. 233 |
| Parties | WHALEY & BLACKWELL v. M. & W. CAPE. |
| Court | Missouri Supreme Court |
APPEAL FROM THE WASHINGTON CIRCUIT COURT.
This was an action commenced in the Circuit Court by petition and summons by the appellants against the appellees on a single bill obligatory. The defendants in the Circuit Court pleaded payment and set-off. The plaintiffs in the Circuit Court joined issue on the plea of payment and demurred to the plea of set-off. The demurrer was overruled and 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 in the Circuit Court; to reverse which, the plaintiffs below have come by appeal into this court. The plaintiffs were administrators of one William Whaley, deceased, and the promissory note sued on was given to them in that 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 of 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, deceased. 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 more persons be mutually indebted to each other, by judgments, bonds, bills, bargains, promises, accounts, or the like, and one of them commence an action in any court, one debt may be set-off against the other, notwithstanding such debts may be deemed in a 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 February 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 regard it in the same light. It has been objected that the distributive share to which each of the appellees 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 in this position. It has been held that a set-off may be well pleaded, whenever the plaintiff is individually liable for the debt set-off. 2 Esp. C. 594; 3 Stark. Ev. 1316. And it is clear from the 61st and 64th sections of the administration law, Rev. Code, 117 and 119, that the appellants, after the order of distribution of the county court, were personally responsible to the distributees, out of their own proper goods, upon their failure to pay over the sums respectively due.
Several authorities have been cited by the counsel for the appellees, which maintain that in...
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...due from plaintiff and another does not deprive defendant of the privilege of using it as a set-off when sued by plaintiff alone. (Whaley v. Cope, 4 Mo. 233; 8 Mo. 309; 24 Mo. 306.) The defendant could have maintained an action for the debt against plaintiff alone. (4 Mo. 233.) EWING, Judge......
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