State Use of Connoway's Admr. v. Connoway

7 Del. 206

• Court: Superior Court of Delaware
• Decided: July 5, 1860
• Status: Published

Opinion

Gilpin, Ch. J. :

The section referred to expressly provides that if either party sues, or is sued as an executor or administrator, and there "are mutual debts between his testator, or intestate, and the other party, one debt may be set-off against the other; and this disposes of the objection.

Houston, J. :

The debts are mutual, and even under the preceding section of the statute, which provides for setting off mutual debts due in the same right, the plea would perhaps be admissible. But the legislature has not left the question to depend on that provision, but has expressly provided for the case in the succeeding section. The plaintiff however, has traversed the plea of set-off in this ease and taken issue upon it. If the objection now taken to it, were a sound one, on the ground suggested, he should not have taken issue upon it, but should have demurred to it.

The defendant then proved the set-off, and the pi an tiff in reply called one of the heirs at law and distributees of the personal estate of the decedent, Levin Connoway, to disprove the charges which were the subject of set-off who was objected to by the defendant as an incompetent witness, because of the interest which he had, as such, in the event of the suit. The Court sustained the objection and excluded the testimony of the witness.

The witness then executed a release to the administrator of his right and interest in the property and estate of the decedent, and was sworn and testified that during the time the decedent was an inmate in the family of the defendant, Nathaniel Connoway, he performed Work and labor for him equal in value to the trouble and expense of his support and maintenance.

The Court,

Gilpin, Ch. J.,

charged the jury, that in an ordinary case the claim of set-off for board and clothing pleaded in this instance, would be a good defence to the action, to the extent of the value of them proved under the plea, and in that event, it would be material for the jury to consider what would be the value of the service, or work and labor performed by the decedent for the defendent during the time he lived with him. But Levin Connoway the decedent, and Nathaniel Connoway the defendant, or one of the defendants, the other being his surety simply in the recognizance, were proved to have been brothers, and as this court had repeatedly recognized the principle, that as between persons standing in that relation to each other, or as between near relations, the law will not imply a contract, or promise on the part of the former to pay the latter for his board and clothing, or on the part of the latter to pay the former for his work and labor, during the time the former had lived with the latter, and as no action of assumpsit could have been maintained for either demand by the one against the other, without proof of an express contract, or promise to pay for .them, and no such evidence had been adduced in this case, the plea of set-off could not be allowed, or considered by the jury, and their verdict must therefore be for the plaintiff.