Sawyer v. Seaver , 166 Mass. 447 ( 1896 )

Holmes, J.

It already has been decided that the debt due to the defendant Weston cannot be set off against the debt due from him to the defendant Seaver. Seaver v. Weston, 168 Mass. 202. It also is clear, from the same case and others, that the latter debt must be accounted for in Vermont. Martin v. Gage, 147 Mass. 204, 205. See Woerner, Adm. § 162. It may be assumed that if, by reason of the necessity which Seaver was under of suing in this Commonwealth to collect his debt, this State should see fit to seize the proceeds of the suit and apply them in the first instance to the payment of Massachusetts creditors, proof of the compulsory surrender would be a sufficient accounting in another jurisdiction to protect the administrator. But the facts do not seem to us to warrant such a seizure. We do not perceive why in this instance equity should carry set-off further than it is carried by the common law. The set-off would reach the whole debt, whereas, if it is brought into an account, the executor may be allowed what he personally has contributed to make the goods salable. In Martin v. Gage, ubi supra, it was decided that a removal of assets from another State into this State, and a sale of them here, did not make the debt Massachusetts assets, although a removal of a debtor of the testator after the testator’s death into this State might have a different effect. Pinney v. Mc Gregory, 102 Mass. 186. If the necessity of collecting the debt by suit ever would make a difference, we do not think that the debtor can be allowed, by his refusal to pay, to acquire rights which but for his refusal would not exist. See further Aiken v. Bridgman, 37 Vt. 249.

Bill dismissed.