WRIT of error to the Superior Court in and for Sussex county.
Heard at the June term, 1846, before Johns, jr., Chancellor; and Judges Booth and Hazzard.
The action below was in assumpsit by the executors of T. Robinson, for goods sold and delivered, and money had and received; to which there was a plea of set-off of a legacy bequeathed to the defendant by said Robinson.
The defendant, by arrangement with the executors, took certain goods at the appraisement, and bought other property at a sale made by them; and there was some evidence of their consent, that the amount of the goods so bought, should be deducted from, the legacy.
The court below charged that the plea of set-off of the legacy bequeathed by plaintiff's testator to the defendant, was a good plea, not merely on the proof of an agreement by the executors to deduct the bill of goods bought by defendant of them out of said legacy, but on the principles of set-off, generally: the legacy being a debt due (under the act of assembly) from the executors, and recoverable in assumpsit.
Exception was taken to this part of the charge; and the case now came up, in error, and was argued by Layton, for plaintiffs in error, and Cullen, for defendant.
Mr. Layton, cited Dig. 111; 8 Bac. Ab. 639-49; 2Wms. Ex'rs. 1333, 651; 10 Serg. R. 10; 8 Ibid 124; 4 N. Y. Dig. 956, 2 Johns. Rep. 151; 8 Wend. Rep. 530; 1 Tidd's Pr. 605; 9 Cow. Rep. 295; 6 Law Lib. 28; 2 Hill's Rep. 210.
Mr. Cullen, contra, cited Dig. 228; 2 Wms. Ex'rs. 1388, 934; Ward on Leg. 143; 4 Harr. Rep. 173; 3 Johns.Rep. 433; 11 Ibid 70; Dig. 445; 1 Wend. Rep. 418; 21 Ibid 354; 4 Cowen 34. In this cause the plaintiffs in error have relied on errors assigned in eight several, distinct, and specific matters, as entitling them to a reversal of the judgment below. Independent of the bill of exceptions, and the matter therein contained, it is apparent the record exhibits no error, for the pleadings raise no question of law, and the facts in issue are referred to the jury; and *Page 419 their verdict being found for the defendant, would sanction the judgment. But the second and eighth causes assign as error, the opinion and charge of the court relative to the law of set-off; and plaintiffs therefore, insist upon their right to a reversal of the judgment, for this cause.
This right is founded upon the act of assembly, concerning bills of exceptions, cases stated, and verdicts. (Dig. Del. Laws, 445-6.) The exception is to that part of the opinion and charge of the court to the jury, which declared, "on the principles of set-off, generally, that the legacy of one thousand dollars ought to be set-off against the demand of the plaintiffs." This part of the opinion and charge of the court, is considered by this court, erroneous; the cause of action being for property sold by the executors, and part of the assetts of the testator. Their right to collect by suit, their value when sold, cannot be varied or affected by the form of action, whether suing as executors, or in their own name, makes no difference. In such an action, a legatee cannot set-off a legacy, for it would interfere with the course of administration. Nor when an executor sues for a cause of action arising after the testator's death, can the defendant set-off a debt due to him from the testator. (Shipman vs. Thompson, T.T., 11 12 Geo. 2; and Tegetmeyer and another, Ex'rs. vs. Lumley, T. 25, Geo. 3, B. R.) The latter was an action of covenant for rent, part of which became due in testator's life time, and part since his death. The defendant, at the trial before Lord Mansfield, at the sittings after Easter Term, 25Geo. 3, set-off a debt due from the testator to him, and the plaintiffs were nonsuited. Erskine moved for a new trial, on the ground that this could not be set-off; and cited Rydout,assignee vs. Brough, Cowp. 133; Shipman vs.Thompson, Bull. N. P. 180; and Kilvington Ex'rs. vs.Stevenson, which he read from a note of Mr. Justice Yates. "Assumpsit as executor for goods of his testator. There were two pleas, 1st, non-assumpsit; 2d, a set-off for a debt due from the testator to the defendant. To this the plaintiff demurred; and Wallace, in support of the demurrer, insisted that the plea was bad, and that the defendant could not set-off a debt owing to him by the testator, in satisfaction of the present demand, as that would be altering the course of distribution; and he might by this means be paid before creditors of a superior nature. Per Curiam. — The plea is clearly bad. This is not an action for goods that were in hand at the testator's death, in which case he might set-off; but for goods he has taken possession of since his death, in which case, to allow the set-off, would be altering *Page 420 the course of distribution. Judgment for plaintiff." (Montague onSet-off, 41 App'x.)
It is therefore, considered by the court, that for the error in that part of the opinion and charge of the Superior Court, which states, "that on the principles of set-off, generally, the legacy of one thousand dollars ought to be set-off against the demand of the plaintiff;" the said judgment be, and the same is hereby reversed, and the record remanded to the Superior Court of the State of Delaware, in and for Sussex county. The costs of this appeal to be paid by the defendant.
Judge Hazzard, concurred.
The Chief Justice, dissented.