Morrow's Assignees v. Bright

20 Mo. 298

Opinion

Soott, Judge,

delivered the opinion of the court.

The only question in this case is, whether the defendant, Bright, is entitled to the benefit of the set-off which he claims, as against the plaintiffs ?

The plaintiffs are the voluntary assignees of the insolvent Morrow, and their position in this action cannot be likened to that of an assignee for value of the specific debt which is sought to be recovered.

In the case of Krause v. Beitel, (3 Rawle, 199,) it was held that the interest of a trustee of an insolvent debtor in debts due to the insolvent, is exactly that of the insolvent himself, as it stood affected by countervailing equities at the time of the assignment.

Our statute, in suits brought by administrators and executors, allow debts existing against their intestates or testators and belonging to the defendant at the time of their death, to be set-off in the same manner as if the action had been brought by or in the name of the deceased. On this view of the subject, there would be no impropriety in allowing the set-off.

But the matter may be presented in another light. Bright could not sue Morrqw to recover the money for which he was bound for him, until he had actually paid it. But this goes on a technical ground, peculiar to the action for money paid,, laid out and expended. Money cannot be said to be laid out for another until money is actually paid on his account. But, in substantial justice, as Bright was Morrow’s surety, and com-pellable by law to pay the debt, and as Morrow was insolvent, Bright may be regarded as the creditor of Morrow from the time the note was protested. Then, as there was an indebted-mess on the part of Morrow to Bright, and as the very act of assignment was evidence of insolvency, by which Bright became absolutely bound, there was an equity against the demand of Morrow at the time of the assignment, growing out of his indebtedness to Bright.

We do not .consider that this action is affected by the third article of the present practice act.

Jude Ryland concurring,

judgment affirmed.