Dasher v. Leinaweaver

3 Serg. & Rawle 200

• Court: Supreme Court of Pennsylvania
• Decided: May 22, 1817
• Status: Published

Opinion

The opinion of the Court was delivered by

Tilghjian C. J.

The assignee of a bond takes it subject to all the equity, or right of defalcation which exists against the obligee, unless the obligee tells him that he has nothing to defalk. The assignment to Michael, we consider as an advance in right of his wife, and subject to defalcation, in case the father-in-law’s debts exceeded his assets, in the hands of the defendant, who was his administrator. On old Peter Leinaweaver’s death, the bonds of the defendant were equitable assets, for the payment of his debts. We think, therefore, that the administrators’ accounts were prima facie evidence of the amount of Peter Leinaweaver’s estate, and of the debts paid by the defendant, but not conclusive evidence. Without inquiring into the situation of that estate, justice cannot be done to the defendant. Inasmuch, then, as it does not appear, that the defendant ever gave the plaintiff reason to suppose, that he had nothing to set-off against his bond, we are of opinion, that the judgment should be reversed, and a venirefacias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.