Donelson v. Inhabitants of Colerain , 45 Mass. 430 ( 1842 )

Dewey, J.

The only question raised in the present case is as to the right of set-off insisted upon by the defendants. Two objections are taken to the allowance of the set-off: 1. That the demands are not mutual : 2. That the defendants’ demand has not been liquidated.

Before the enactment of the provisions of the Rev. Sts. c. 96, the right of set-off was more restricted ; but it being found to be a very equitable and reasonable mode of adjusting the mutual demands of parties upon each_ other, it has been extended to cases not apparently embraced in the former statutes.

We perceive no sufficient reason for rejecting this set-off for want of mutuality in the respective demands. Considering it as arising wholly by force and effect of the bond, the case would stand thus : The defendants hold a bond executed by the plaintiff and third persons as his sureties. The bond is a joint and several one ; and being the several bond .of the plaintiff, it might be enforced against him alone : And neither the plaintiff, who is principal in the bond, nor his sureties, can have any interest arising from their being parties to the bond, that should prevent the allowance of a set-off. The plaintiff cannot, because there can be no claims that require to be adjusted between him and his sureties as to this matter ; and the sureties can have no interest adverse to the diminishing of the extent of their liability on the bond—which will be the effect of granting the motion of the defendants and allowing the set-off.

Nor can the other objection avail the plaintiff, that the demand sought to be set off is unliquidated. The set-off asked by the defendants is in terms restricted to the claim for money actually received by the plaintiff, as a collector of taxes. No claim is made for any allowance, by way of set-off, on account of any breach of the condition of the bond by reason of the plaintiff’s neglect of duty in not enforcing the collection of taxes. Thus restricted, the demand of the defendants is one that may easily be ascertained ; as easily, at least, as any account filed in offset for money received by the adverse party.

That a demand may be the subject of set-off, though it is founded on a bond or other contract with a penalty, seems to be expressly provided in Rev. Sts. c. 96, § 6. And as the demands, on which the plaintiff’s action is founded, are themselves the subject of set-off, according to the requisition of § 7 of the same chapter, the defendants’ motion for a set-off must prevail.