Ray vs. Dennis.

should file his Injunction Bill to stay proceedings at Law, and pray that the estate of his intestate may be distributed under the direction of a Court of Chancery. This is the proper remedy for an administrator in all cases of insolvent estates. 1 Story's Comm. 516-17. 2 Vesey, Jr. 518. 18 Vesey, 469. 4 J. Ch. R. 618. 2 Vernon R. 37.

By the Court-WARNER, J. delivering the opinion.

[1.] The motion to strike out the plea of the defendant, on the ground that no plea of set-off lies to an action by an executor, or administrator, we think was properly overruled by the Court below.

The argument for the plaintiff in error, assumes that if the plea of set-off shall be allowed, it defeats the provisions of the Statute, directing the order in which the debts of deceased persons are to be paid, by their personal representatives. If the intestate was indebted to the defendant in his lifetime, in an equal or greater amount than the debt due from the defendant to the intestate, then, the intestate's demand, as against the defendant, was paid and extinguished by such indebtedness, and the note of the defendant in the hands of the intestate's administrator, cannot be considered as assets, for the reason it has been paid off and extinguished by the intestate's mutual indebtedness to the defendant, at the time of his death. The intestate, if in life, could not have recovered the amount of the note from the defendant, nor can his legal representative. The legal representative is required only to distribute the assets of his testator or intestate, which may legally be reduced into his possession, in the order pointed out by the Statute. If the debt of the defendant, held by the intestate at the time of his death, was paid by the intestate's indebtedness to him at that time, then, the note in the hands of the ad ministrator is not, in contemplation of law, assets, upon which the Statute, directing the order in which debts are to be paid can operate that Statute only operates to direct the distribution of the assets, which belong to the testator or the intestate, and which the legal representative may lawfully reduce to possession in right of his testator, or intestate.

On the trial of the cause, it appears from the record, the defendant offered in evidence, in support of his plea of set-off, a

Ray vs. Dennis.

judgment rendered against the plaintiff's intestate in his lifetime, as principal debtor, and the defendant as his security.

[2.] The plaintiff then offered to prove that the defendant had paid off the judgment, as security, since the death of the intestate, which testimony was rejected by the Court, on the ground, that the judgment was a debt against the intestate in his lifetime, whereupon the plaintiff excepted. As a general proposition, it is undoubtedly true, that when a suit is brought on a demand due the testator or intestate, in his lifetime, by his legal representative, the defendant cannot plead as a set-off, a debt, or demand, which may have been created or purchased subsequent to the death of the testator or intestate; but here, the judgment was rendered against the intestate in his lifetime, and his legal liability, as well as that of his security, was fixed by the judgment. In Bailey vs. Mizell, 4 Ga. Sup. Ct. Rep. 129. We held, it was the intention of the Legislature, when the security paid off a judgment, to subrogate the surety, to all the rights of the plaintiff in the judgment. Had this suit by the administrator, been instituted against Haney, the plaintiff in the judgment, he would have been entitled to set-off the judgment against the plaintiff's demand. The defendant, who was the security for the intestate in that judgment, having paid it, now claims to occupy the same position, as the creditor to whom he paid it. The objection is, that the judgment was paid by the security, since the intestate's death. The answer is, that the payment was made to discharge a legal liability, existing at the time of the intestate's death, and although paid since, such payment has relation back to the date of the judgment, for the purpose of enabling the security to remunerate himself out of the property of his principal, in accordance with the proviso to the 4th section of the Act of 1826. Prince, 461. The rejection of the evidence offered by the plaintiff in the Court below, constitutes no ground of error, in our judgment, for the reason, when the payment was made by the security in the judgment, such payment had relation back to the date of the judgment, which was rendered in the lifetime of the intestate.

[3.] The record discloses that the judgment plead as a set-off, was for a larger amount than the plaintiff's demand. The 24th section of the Judiciary Act of 1799, provides that, "In all cases of mutual debts and sets-off, where the jury shall find a balance

Rayes. Dennis.

for the defendant, such defendant may and shall enter up judgment for the amount, and take out execution in such manner as plaintiffs may do by this Act." Prince, 425.

The plaintiff offered to prove, on the trial, that the estate of his intestate was insolvent, and that there were debts outstanding of a higher dignity than defendant's set-off, sufficient to take the entire amount of the available assets which had come into the hands of the plaintiff, which testimony so offered, the Court rejected, on the ground that the pleadings did not authorize the reception of such testimony. Whereupon, the plaintiff excepted. We are of the opinion, under our system, as regulated by the 9th section of the Judiciary Act of 1799, the evidence ought to have been admitted, for the protection of the administrator. A set-off is in the nature of a cross action, and where the defendant's demand exceeds the plaintiff's, he is entitled to a judgment for the balance. An absolute judgment against the administrator, for such balance, in favor of the defendant under the Statute, would be conclusive evidence of assets against him, in an action for derastavit, founded on such judgment; as much so as if the judgment had been obtained in favor of a plaintiff against the administrator. According to the English rule of pleading, the plaintiff would have filed his replication to the defendant's plea; but special pleading is abolished here, and it is declared that the plaintiff's petition and the defendant's answer, shall be sufficient to carry the case to the jury, without any replication or other course of proceeding. Prince, 421. The defendant, at the trial, introduces evidence to establish his set-off, and the plaintiff wishes to show the defendant's demand was obtained by duress, or that it is barred by the Statute of Limitations, or that he was an infant when he gave the note, or any other fact which in law would avoid the defendant's plea-how is he to do it, unless he is permitted to prove the facts, and then call upon the Court to instruct the jury as to the law arising thereon? Such, it is believed, has been the construction given to the Judiciary Act of 1799. Instead of filing a replication, the plaintiff replies with his evidence, a practice, it must be acknowledged, not very well calculated to preserve, and exhibit to the Courts, in a foreign jurisdiction, a complete and entire record of the cause, and the issues involved in it. If the administrator could have shown in this case, that the estate of his intestate was insolvent, and that there were outstanding

Price vs. Bradford.

debts of a higher dignity than the defendant's set-off, sufficient to exhaust the entire amount of the assets in his hands, we think he ought to have been permitted to have done so, by way of replication to the defendant's evidence; and upon such facts being proved, the defendant would not be entitled to an absolute judgment against the administrator, but to a judgment quando acciderent, in the same manner as if the suit had been instituted against the administrator by a plaintiff, on a demand against his intestate. The jury, however, in this case, not having found a verdict for any balance against the administrator, no injury has been done. him, and there is no necessity for granting a new trial in this cause. Therefore, let the judgment of the Court, below be affirmed.

No. 40.-PATRICK PRICE, plaintiff in error, vs. Joseph A, BradFORD, defendant.

[1.] Under the Act of 1829, authorising the transfer and assignment of judg ments and executions, they are negotiable, like promissory notes payable to order; and that Act does not repeal the Common Law rule, which authorises the assignment of the equitable interest in judgments,

Motion to distribute money, in Crawford Superior Court. Decided by Judge FLOYD, February Term, 1848.

The question in this cause arose upon a motion to distribute money in the Sheriff's hands between different fi. fas. claiming the same. Certain fi. fas, which had been twice transferred, were ruled out by the Court, the Court holding that the second transfer amounted to a payment. This decision was excepted to, and is now alleged to be erroneous.

HALI. & WIMBERLY, for plaintiff in error, contended—

1st. That the Act of 1829 gives the plaintiff the right to transfer the fi. fa. and subrogates the transferee to the rights of the plaintiff. Prince, 464.

Price vs. Bradford.

2d. Statutes in derogation of the Common Law to be strictly construed, (Stell vs. Glass, 1 Kelly, 475,) and the rules which ordinarily govern in the construction and which are resorted to by Courts to effectuate the rights of parties. See Cobbett's case, 1 Chudlugh's case, lb. 134, a. Herbert's Farmer's case, lb. 78 a. 11 Mod. R.

Coke, R. 88, a, note g, 2. case, 3 Ib. 136, note a.

150.

3d. The issue here presented was, fraud or no fraud, and should have been submitted to the jury. 18 Wend. R. 353, 375. 1 Greenleaf's Ev. sec. 80. Peck vs. Land, 2 Kelly, 12.

4th. That the right to assign choses in action, among which are judgments and fi. fas. existed at Common Law, and that a subsequent Statute passed to confer upon the plaintiff's assignee, the power of controlling the fi. fas. and collecting it in his own name, does not take away the Common Law right of transfer. See 1 Tomlin's Law Dict. tit. Assignment. Foster's case, 11 Coke, 63 a, 63 b, 64 a, 64 b. Brown vs. Chapman, 3 Bun. 1418. 3 Kelly, 3. Morgan vs, Davis, 2 Harr. & McHen. 9. Mills vs. Mercer and wife, Dudley's R. 158. Ivers, 4, T. R. 690.

Howell vs. Mc

Prescott vs.

Barbou on Set-Off, 58. Heath vs. Hull, 4 Taunt. 326. Hull, 17 J. R. 284. Ford vs. Stewart, 19 J. B. 342. Dawes vs. Boylston, 9 Mass. R. 337. Brown vs. the Maine Bank, 11 Ib. 153. 3 Stew. R. 260. 1 Hawks, 483. 1 McCord, 80. 2 Ib. 318. Comyn's Dig. tit. Assignment a. Spencer's case, 5 Coke, R. 176.

5th. That Courts of Law will recognise assignments, and make use of the name of the assignor to enforce the rights of the assignee, and that Courts of Equity will enforce those rights without the use of the assignor's name. 2 Story's Eq. Ju. sec. 1056. Barbour on Set-Off, 57, 58. 19 J. R. et sup. S Ib. 152. 3 Kelly, 159. 2 Story's Eq. Ju. sec. 1057, and cases in note 2.

HUNTER, for defendants in error.

We contend that the Act authorising the transfer of judgments contemplates but one transfer, and that from the original party plaintiff. The words of the Act are, "that the plaintiff, &c., may transfer." Now according to every rule of construction, we contend that the right to transfer a judgment, is restricted to the original party plaintiff. We rely upon the following decisions made by this Court. 2 Kelly, 155. 3 Kelly, 146. 1 Kelly, 5, 6,