Williams, J.
The facts are briefly these. Samuel, Joseph and Edward Pitkin, surviving partners of Elisha Pitkin & Co., submitted their accounts to arbitration. An award is made against Edward, the defendant, upon which this suit is brought. The defendant claims, that Stephen Pitkin owes Elisha Pitkin & Co. a debt, which, by the arbitrators, by consent of all persons interested, was set to him, the defendant; that the plaintiff is executor of Stephen; has administered; has assets; has procured an order of distribution; and that this debt is to be considered as due from him, and not from the estate of Stephen Pitkin; that it is extinguished as against the estate; and that so he has a right of set-off against the debt of the plaintiff.
That the debts must be mutual to authorize a set-off, is required by statute. To constitute mutuality, the debts must be due to and from the same persons in the same capacity. Palmer v. Green & al. 6 Conn. Rep. 14. Francis v. Rand, 7 Conn. Rep. 221. And those claims must be such, that the plaintiff can sue, and the defendant be sued, in their individual capacities. Miller v. The Receiver of the Franklin Bank, 1 Paige 444.
If the debt claimed to be set off, is, by operation of law, extinguished, so as no longer to be a debt against the estate of Stephen Pitkin, the charge is correct. But the party who claims this, is bound to shew when and how it was effected, if it is claimed, that this was the effect of the award, it may be asked, why did not the arbitrators make the set-off? If it be said, that although the arbitrators did not in form make it, yet such is the legal result of what they have done; it may be asked, when did this take place? Immediately upon the publication of the award? It does not appear, that it was then ascertained, that there were assets in the hands of the executor. Will it be said, that the debt became extinguished against the estate of Stephen Pitkin, the moment it was ascertained, that there were assets in the hands of his executor, or on the obtaining an order of distribution? The consequence of such a principle must be, that if the executor should be removed or die, the estate of Stephen Pitkin must be discharged from the payment of this debt, and the defendant, if his claim surmounts the plaintiff’s, must look only to Joseph Pitkin, an insolvent; and [329]*329although, in this case, the injury might not be great, (as the claims of the parties are nearly equal) it is apparent, that such a principle, once adopted, would be productive of serious evils. For, if Joseph had no debt against Edward, this principle of extinguishment would exonerate the estate of Stephen, and discharge the surety of Joseph; and then, by substituting a technical payment for an actual payment, Edward might be deprived of the benefit of those securities the law has given for the protection of the creditors of a deceased person against the insolvency of his representatives.
Again, if the executor of Stephen Pitkin is personally liable for this debt, then it follows, that in every case where there are assets, and distribution is ordered, the executor or administrator is personally liable for a debt claimed to be due the estate. Nor can I see but that, upon the same principle, he must be liable, if he has assets, whether distribution is ordered or not; and the consequence will be, that his representative capacity is lost sight of. But such claims are against the estate of the deceased. As such, they must be exhibited; as such, established; and as such, recovered. Any other principle would subject not only executors, but all trustees, to try claims against the estate they represent, as individuals, and subject them personally to executions, in the first instance; and thus practically abolish all difference between claims against them as representatives of others and as individuals.
It is said, that in Wells v. Brockway,
It was further urged, that as the plaintiff was one of the creditors of Stephen Pitkin, and is also executor of Stephen Pitkin, no suit can be brought for this debt; and therefore, the principle of retainer by an executor must be applied. And if it be so, that no suit can be sustained for this debt, there is force in the argument. The defendant, however, claims, that though this debt was due originally to Elisha Pitkin & Co., it is now, by assignment, due to him. Of course, if he can sustain a suit, the argument fails. And the superior court has decided, that where the promisee of a note not negotiable, had assigned it, and made the maker his executor, the assignee, after his death, might sustain an action at law against the maker. Hoyt v. Maltby, cited by Smith, arguendo, 1 Day 226. If that decision is to be considered as law, Edward Pitkin can now sustain his action at law against the executor of Stephen Pitkin for this debt. But if that case should not be recognized, by this Court, it would be merely because the remedy is in chancery. No embarrassment, therefore, can arise from the fact that the executor is both creditor and debtor.
The case of Fryer v. Gildridge, Hob. 10. (S. C. Moor 855.) has been much relied on, in which it was held, that where an obligor made his wife executor, she being also executor of the obligee, after his death, a surviving obligor could not be sued; first, because when the obligor made the obligee his executor, the action was suspended, and being once suspended and a personal action, it was therefore extinct; and secondly, as the obligor left assets, and the executor of the obligee was also his executor, the debtor was presently satisfied by way of retainer. Without inquiring how far this doctrine, that a suspension of a remedy in personal actions, is an extinguishment of it, or how far the English practice of retaining by an executor, is to be adopted in this state, it seems to me, that the case from Hobart is not applicable to the case before the Court.
From the defendant’s own shewing, this debt, when it was set over to him, was considered, by all parties, as a debt due from the estate of Stephen Pitkin, and not from Joseph Pitkin. As such, the defendant claims, that it was set over to him; as such, he received it.
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Williams, J.
The facts are briefly these. Samuel, Joseph and Edward Pitkin, surviving partners of Elisha Pitkin & Co., submitted their accounts to arbitration. An award is made against Edward, the defendant, upon which this suit is brought. The defendant claims, that Stephen Pitkin owes Elisha Pitkin & Co. a debt, which, by the arbitrators, by consent of all persons interested, was set to him, the defendant; that the plaintiff is executor of Stephen; has administered; has assets; has procured an order of distribution; and that this debt is to be considered as due from him, and not from the estate of Stephen Pitkin; that it is extinguished as against the estate; and that so he has a right of set-off against the debt of the plaintiff.
That the debts must be mutual to authorize a set-off, is required by statute. To constitute mutuality, the debts must be due to and from the same persons in the same capacity. Palmer v. Green & al. 6 Conn. Rep. 14. Francis v. Rand, 7 Conn. Rep. 221. And those claims must be such, that the plaintiff can sue, and the defendant be sued, in their individual capacities. Miller v. The Receiver of the Franklin Bank, 1 Paige 444.
If the debt claimed to be set off, is, by operation of law, extinguished, so as no longer to be a debt against the estate of Stephen Pitkin, the charge is correct. But the party who claims this, is bound to shew when and how it was effected, if it is claimed, that this was the effect of the award, it may be asked, why did not the arbitrators make the set-off? If it be said, that although the arbitrators did not in form make it, yet such is the legal result of what they have done; it may be asked, when did this take place? Immediately upon the publication of the award? It does not appear, that it was then ascertained, that there were assets in the hands of the executor. Will it be said, that the debt became extinguished against the estate of Stephen Pitkin, the moment it was ascertained, that there were assets in the hands of his executor, or on the obtaining an order of distribution? The consequence of such a principle must be, that if the executor should be removed or die, the estate of Stephen Pitkin must be discharged from the payment of this debt, and the defendant, if his claim surmounts the plaintiff’s, must look only to Joseph Pitkin, an insolvent; and [329]*329although, in this case, the injury might not be great, (as the claims of the parties are nearly equal) it is apparent, that such a principle, once adopted, would be productive of serious evils. For, if Joseph had no debt against Edward, this principle of extinguishment would exonerate the estate of Stephen, and discharge the surety of Joseph; and then, by substituting a technical payment for an actual payment, Edward might be deprived of the benefit of those securities the law has given for the protection of the creditors of a deceased person against the insolvency of his representatives.
Again, if the executor of Stephen Pitkin is personally liable for this debt, then it follows, that in every case where there are assets, and distribution is ordered, the executor or administrator is personally liable for a debt claimed to be due the estate. Nor can I see but that, upon the same principle, he must be liable, if he has assets, whether distribution is ordered or not; and the consequence will be, that his representative capacity is lost sight of. But such claims are against the estate of the deceased. As such, they must be exhibited; as such, established; and as such, recovered. Any other principle would subject not only executors, but all trustees, to try claims against the estate they represent, as individuals, and subject them personally to executions, in the first instance; and thus practically abolish all difference between claims against them as representatives of others and as individuals.
It is said, that in Wells v. Brockway,
It was further urged, that as the plaintiff was one of the creditors of Stephen Pitkin, and is also executor of Stephen Pitkin, no suit can be brought for this debt; and therefore, the principle of retainer by an executor must be applied. And if it be so, that no suit can be sustained for this debt, there is force in the argument. The defendant, however, claims, that though this debt was due originally to Elisha Pitkin & Co., it is now, by assignment, due to him. Of course, if he can sustain a suit, the argument fails. And the superior court has decided, that where the promisee of a note not negotiable, had assigned it, and made the maker his executor, the assignee, after his death, might sustain an action at law against the maker. Hoyt v. Maltby, cited by Smith, arguendo, 1 Day 226. If that decision is to be considered as law, Edward Pitkin can now sustain his action at law against the executor of Stephen Pitkin for this debt. But if that case should not be recognized, by this Court, it would be merely because the remedy is in chancery. No embarrassment, therefore, can arise from the fact that the executor is both creditor and debtor.
The case of Fryer v. Gildridge, Hob. 10. (S. C. Moor 855.) has been much relied on, in which it was held, that where an obligor made his wife executor, she being also executor of the obligee, after his death, a surviving obligor could not be sued; first, because when the obligor made the obligee his executor, the action was suspended, and being once suspended and a personal action, it was therefore extinct; and secondly, as the obligor left assets, and the executor of the obligee was also his executor, the debtor was presently satisfied by way of retainer. Without inquiring how far this doctrine, that a suspension of a remedy in personal actions, is an extinguishment of it, or how far the English practice of retaining by an executor, is to be adopted in this state, it seems to me, that the case from Hobart is not applicable to the case before the Court.
From the defendant’s own shewing, this debt, when it was set over to him, was considered, by all parties, as a debt due from the estate of Stephen Pitkin, and not from Joseph Pitkin. As such, the defendant claims, that it was set over to him; as such, he received it. If this debt had then become a debt due from the plaintiff to the defendant, it should have been deducted, by the arbitrators, from the debts found due to Joseph [331]*331from Edward; and no sum could have been awarded as due from Edward to Joseph. And after the award was made, this debt, if legally due to Joseph, Samuel and Edward, was equitably due only to Edward. Of course, Joseph had no right to discharge it; no right to collect it; nor could he pay it to any of the firm of Elisha Pitkin & Co., except Edward.
All the cases which have been decided under our garnishee law. as to the right of property in a debt assigned, and all those cases where suits have been brought for taking and giving a discharge, after notice of an assignment of a debt, shew this. St. John v. Smith, 1 Root 156. Forbes v. Brewster, 1 Root 234. Russell v. Cornwell, 2 Root 122. Coleman v. Wolcott, 4 Day 28. Magill v. Lyman, 6 Conn. Rep. 59.
The common law doctrine of an executors retaining for his own debt, is founded upon the idea, that it is absurd and incongruous that he should sue himself, or that the same hand should pay and receive the same debt; and as he must be paid first, who sues first, the executor, as he cannot sue at all, must lose his debt, when the estate is insolvent, without he has the power of retaining. Toll. Exec. 230. But this privilege a court of equity will restrain, when perverted to fraudulent purposes. Toll. Exec. 232. Of course, as Joseph Pitkin here was only one of a number of nominal creditors, and Edward Pitkin was the real creditor, and might, in a court of equity or a court of law, sustain a suit therefor, it seems to me to be a perversion of this privilege of retaining for a debt due to an executor, to say, that Joseph Pitkin could retain for this debt due to Edward. No analogous case has been adduced; none, I think, can be. This power, like the privilege of an infant, was given as a shield, not as a sword. And were it decided, that an executor could retain for a debt, which he has assigned, it is apparent, that this privilege might become a weapon of fraud and injustice.
I am, therefore, of opinion, that there must be a new trial.
Hosmer, Ch. J. and Daggett, J. were of the same opinion.
Peters, J. dissented; and Bissell, J. was absent.
New trial to be granted.
Decided at Hartford, September, 1829, cor. Thompson and Bristol, Js.