Adams v. Ware , 33 Me. 228 ( 1851 )

Tenney, J.

— Can the set-off be allowed ?

Revised Statutes, chap. 115, sect. 37, provides, that “in actions by executors and administrators, demands against the testators and intestates, which belonged to the defendant at the time of their death, may be set off in the same manner, as if the action had been brought by the deceased.” We are then to see, what would have been the rights of the deceased and the defendant upon the question of set-off, upon the claims now presented. “ When there are mutual demands between the plaintiff and the defendant in any action, one demand may be set off against the other.” Sect. 24.

By the statute of 1821, chap. 59, sect. 19, when an action is brought on a debt of the kind therein specified, the defendant may file any account, he has in set-off, and he may recover a balance, if one is found in his favor. This provision, which is substantially the same, as that contained in R. S. chap. 115, sect. 24, has had the consideration of this Court in Banks v. Pike & al. 15 Maine, 268, where an account in favor of one of the two defendants was filed in set-off. And the Court say, “ The provisions of the law in respect to accounts in off-set, cannot be carried out unless the parties having cross-demands are identical. The party defendant is to recover a balance if the demand proves to be greater than that of the plaintiff, in the same manner as if he had brought an action therefor.” It cannot be said, with any propriety, that the debts and demands between parties to a suit, are mutual, when that in favor of one party is against the other party, jointly with those, who are strangers to the suit, and not severally. This construction is aided by the provision in the 33d section of the same chapter, which provides, “ if there are several plaintiffs, the demand set off, shall be due from them all jointly; if there are several defendants, the demand set off, shall be due to them all jointly.” If, in an action upon the judgment in the name of the deceased, the defendant’s judgment against him and others could be allowed in set-off, there is no good reason why an action on a demand in favor of two persons, a claim in favor of the defendant, against the plaintiffs and another, should not be allowed in set-off; and if there, were two defendants, why a demand in favor of those and another against the plaintiff, should not be so allowed. An action upon the defendant’s judgment against the plaintiff’s intestate alone, if such had been brought during his life, would have failed without an amendment according to.the statute, chap. 115, sect. 12, the'judgment being joint against all the debtors therein.

In case of Warren & al. v. Wells, 1 Metc. 80, where the action was against the principal and surety, and an attempt to have an allowance in set-off of a demand in favor of the principal alone, against the plaintiff, the Court held the set-off inadmissible. They say, “ the rule is founded on this consideration, that the plaintiff may have a several demand against such principal, which he could not include in his suit against both defendants, and which he reserves to meet the several defendant’s demand, whenever he shall offer it.” This reasoning will equally apply to a case, where a joint demand against the plaintiff and others in favor of the defendant is filed by the latter.

The defendant’s counsel does not rely upon such a construction of the statute, as would allow his judgment to be set off in an action in favor of the deceased, in his lifetime; but insists, that his death has caused a severance of the claim, which was before joint; and that an action could be maintained thereon against the plaintiff as administrator, and therefore the same claim may be legally set off. The question is to be settled, by the statute as it is, upon a reasonable construction, and not as it may be thought it should be. It was manifestly the intention of the legislature to limit the operation of the statute to the demands between the parties themselves, during the lifetime of both; and that no change should be effected by the death of either, in this respect, excepting by the substitution of the executor or administrator for the deceased. It was clearly the design of the statute in relation to set-off, that there should not be a separation of demands, which were joint against the original debtors, by the death of one of them, although a severance might be the consequence of the death ; and the same rule was intended to apply under the statute to a suit by or against an executor or administrator, and the one, whom he represents, excepting so far as that rule is modified by. other provisions, which are foreign to the present inquiry. The question, whether a set-off can be made or not, in an action, where an administrator is a party, is to be determined alone by the rights of those interested in the demands, before the decease of any of them.

Exceptions sustained.