Jones v. Carpenter

50 Mass. 509

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1845
• Status: Published

Opinion

Dewey, J.

This set-off was properly allowed. It was objected that the creditor in one execution was not, in the same capacity, the debtor in the other. In both of the executions the party was described as administrator of the estate of Timothy Lathrop. But then it is said that the execution against the administrator, being for costs only, is to be levied upon the body of such administrator, or the goods and estate held in his own right; and therefore the case is not within the Rev. Sts. c. 97, § 74. In the opinion of the court, this creates no valid objection to a set-off. It may be beneficial to the estate of Lathrop that it be allowed, as the costs recovered of the administrator, although primarily chargeable upon him, are to be allowed to him in his administration account, “ unless it shall appear to the judge of probate that the suit was commenced or prosecuted unnecessarily, or without any reasonable cause.” Rev. Sts. c. 67, § 11. It comes within the spirit of the statute, and indeed within the very language, if we apply it to the description of the parties.

We think the set-off was proper, and that the ruling of the iudge of the court of common pleas was correct.

Exceptions overruled.