Perrine v. Warren

3 Stew. 151

Opinion

By JUDGE COLLIER.

Under our statutes which regulate and extend the right of set off,

a it is conceded that jf ¿be action had been prosecuted by the intestate in his life time, the plaintiff would have been entitled to his set off against him. But it is insisted that the insolvency of his estate deprives the plaintiff of that right against his representatives. Our statute for the distribution of the estates ofjej.gased persons'When reported insolventb by their ad-ministratofs’ or executors,’directs that after the payment of certain preferred creditors, to which class the plaintiff ■does not profess’to belong, there shall be made an equal distribution- of the assets among the' creditors.' The question then recurs, can the death of the intestate deprive th'e plaintiff of a pre-existing right. If the plaintiff h'ádthought proper, he might have coerced the intestate tó'an 'adjustment of their respective demands, or he might have delayed until an action was instituted against him,' atad theri have claimed to be allowed a set dff; either of these courses might have been adopted," had the intestate instituted ad action in his lifetime;- the right'then was existing in the plaintiff absolutely before the intestates death; and it would seem that that event could have no influence upon it; but that it miistbe considered in the light of other rights, hot - to be lost unless expressly or impliedly waived by the patty -who was entitled to it. '

In Rapier, administrator of Mays v. Holland and Bruce,c this Court ruled that “inan action on a promisé jyjgjjg t0 an administrator, a debt due from his intestate, cannot beset off; thedemandsarein differentrights;to setoffthe the last against the first might do injustice to the rights of other creditors; and with our statutes as to insolvent estates &c. would tend to involve estates in endless confusion.” With respect to this case it may be observed, that no set off had even ^attached in favor of the party offering it. And'had a different rule been laid down, it would havé been in the power of a creditor of a deceased person, by the purchase of the estate, to receive the entire amount of. his claim'in exclusion of other creditors,'who in law and-equity might be equally meritorious. ' ■■ '

In Pitcher and Remsen v. Patrick's administrators a 'hough the question came up, the right of a defendant set off a debt due him from the intestate against the do-mand due the intestate, was not discussed; yet the decision of the Court in that case is founded upon the supposition that such right was unquestionable.-

The offer to set off cannot -bo assimilated to the prosecution of a suit by the party -sued, -and-is therefore not prohibited by the act in regard to insolvent estates, which de-dares, that no suit shall be maintained against an administrator or executor, after the .estate he represents is legally reported insolvent. The defendant does not voluntarily come into Gourt to assert a right; he is passive, and mere-3y asks the Court to permit him to interpose a barrier to the plaintiffs recovery-. •

With regard to the sufficiency of the notice of set off, it may be observed, that the same strictness either of form or substance, cannot be required in a notice oí set off as would be essential to a special plea. It is enough if it inform the opposite party with reasonable certainty of the demands proposed to be set off on the trial. The notice in this case we believe sufficient for that purpose-; and do therefore reverse the judgment, and remand the cause to the Court below.

Reversed and remanded

Laws of Ala. 457, 69.

Laws

Minor's Ala. Rep. 176.

Minor’s Ala Rep, 321.