Miller and others vs. Cotten and others.

advanced money for Ebenezer G. Duffey, to defray the expenses of his trial, or on any other of the transactions stated in the complainant's bill, and which does not appear by the evidence to have been refunded, that they should not decree a re-conveyance of the premises, without requiring said sum or sums, with interest, to be refunded by complainant; which instructions the Court declined to give, because no defence of this sort was set up in defendant's answer; and that even if it had been, the Judge charged the jury, that it would be a good defence only to an action brought by an administrator on the estate of Ebenezer G. Duffey.

[6.] While it is true that in cases of fraud, whether constructive or actual, Courts of Equity have adopted principles extremely broad and comprehensive in the application of their remedial justice, and especially where there is any fraud affecting the acquisition of property, will they interfere and administer a wholesome justice, and sometimes even a stern justice, in favor of innocent persons, who are sufferers by it, without any fault on their own side. Hill on Trustees, 144. Still relief will only be given in these cases, upon the terms of returning any considera tion that may have been received. 11 Ves. 535. Whenever any benefit has been received, the Court will usually fasten a trust on the conscience of the party in respect of such receipts, and direct an account and re-payment. 2 Vernon, 392. Ambler, 432. In this last case, Lord Chancellor Henley expressed himself very strongly. He said he had not the least doubt as to the principle; and that, “if there was no precedent for the determination which he should make, that he had no scruples to make one, and should glory in doing it."

We are inclined to think that there was nothing in the pleadings, which prevented the party from availing himself of the benefit of this rule. It would be involved in the bill itself, provided a proper case was made. We are of the opinion, however, that the account and repayment, is restricted to matters arising out of the particular transaction. If money was advanced by Daniel Duffey, on account of this land, or if the title was executed by way of security, then it was proper that repayment should be made before Equity would decree a reconveyance. As to any general indebtedness by Ebenezer to his father, as was suggested by the Court, that was a matter to be

Ray vs. Dennis.

adjusted by the legal representative of the estate, and not by the complainants.

Our conclusion is, that the ruling of the Circuit Court cannot be sustained. Consequently, the judgment below is reversed.

No. 39.-JAMES J. RAY, administrator of W. W. Dennis, deceased, plaintiff in error, vs. ISAAC DENNIS, defendant in error.

[1] Where the demands are mutual, a set-off will be allowed in favor of a defendant, in an action brought by an executor, or administrator, on a demand due his testator, or intestate, in his life-time.

[2.] Where a judgment was rendered against an intestate in his life-time, as principal, and his security, which judgment was paid by the security, since the death of the intestate: Held, that such payment, under the Statutes of this State, had relation to the date of the judgment, so as to enable the secu rity to remunerate himself out of the property of his principal. [3.] Where a defendant pleads a set-off against an administrator, for a larger amount than his intestate's demand, the plaintiff may reply, by proving that his intestate's estate is insolvent, and that there are outstanding debts of higher diguity than defendant's set-off, sufficient to exhaust the assets in his hands, for the purpose of protecting the administrator from an absolute judgment, under the Statute.

Assumpsit, tried before Judge FLOYD, in Crawford Superior Court, February Term, 1848.

The action was brought in the Court below, upon five several promissory notes, made by the defendant to the plaintiff's intestate in his life-time, three of them payable to said intestate, and the others payable to others.

To this action the defendant pleaded, as a set-off, a judgment, recovered by one Richard Harvey, against said intestate as principal, and the defendant as his security, and which had been paid

Ray vs. Dennis.

off by the defendant; and he claimed to control the same under the Statute of this State, in such cases provided.

A motion was made by plaintiff's counsel, to strike out the plea of the set-off, upon the following grounds:

1st. Because no plea of set-off lies to an action by an executor or administrator, and because the allowance of the plea might defeat the provisions of the Statute appointing the order in which the debts of deceased persons are to be paid by their personal representatives.

Which motion was overruled by the Court, and the parties ordered to proceed with the cause.

The notes were read in evidence to the jury, and the plaintiff closed.

The counsel for the defendant then offered in evidence the record of the case, set forth in the plea of set-off, with the execution issued upon the judgment, with the several entries indorsed thereon, which was admitted and read in evidence to the jury, and the defendant closed; the said evidence, showing that the said intestate was principal, and the defendant security, and the defendant's payment thereof.

The plaintiff then offered to prove that the payments made by the defendant upon said fi. fa. were made subsequent to the death of the said intestate, which said testimony was rejected by the Court, upon the ground that the said judgment upon which the said fi. fa. issued, was a debt against the said intestate in his life-time.

2d. That said intestate was insolvent, and that there are debts outstanding of a higher dignity than defendant's set-off, sufficient to take the entire amount of available assets, which had come to the hands of the plaintiff, which said testimony was likewise repelled by the Court, upon the ground that the pleadings did not authorise the reception of such testimony.

The cause was then submitted under the charge of the Court, and a verdict rendered, sustaining the plea of set-off to the amount of the principal and interest due upon the notes.

Whereupon the plaintiff's counsel excepted, and insists that the Court below committed error

1st. In refusing to strike out said defendant's plea of set-off upon the grounds taken and urged by plaintiff's counsel upon that

motion.

Ray vs. Dennis.

2d. In rejecting the testimony offered by plaintiff, to prove that the payments made upon the fi. fa. set-off by the defendant, were made after the death of the plaintiff's intestate.

3d. In rejecting the testimony offered by plaintiff, to prove that the estate of said intestate was insolvent, and that there were debts outstanding of higher dignity than defendant's set-off, of sufficient amount to consume all the assets which had come to plaintiff's hands, belonging to the estate of the said intestate.

HALL & WIMBERLY, for plaintiff in error, contended :

1st. The Court erred in refusing to strike out the plea of set off. Chitty on Con. 841. Schley's Dig. tit. Stat. Ind. Pr. 25, 422, 228. Foster's case, 1 Coke R. 62, b. 63, a. Harrison vs. Walker, 1 Kelly, 32. Tinsley vs. Beall, 2 Kelly, 134. Johnson vs. Bridge, 6 Con. 693. Tollers' Exrs. 258. 2 Bla. tom. 511. 1 Story's Eq. §579. Doe, ex dem. Cofer vs. Flanagan, 1 Kelly, 541. Chitty on Con. 842.

2d. That the Court erred in rejecting testimony offered to prove that defendant took up the fi. fa. after the death of plaintiff's intestate. Theobald on Prin. & Surety, 227, 228, 232, 233. Prince, 436, 461, 470. French vs. Fenn, 3 Doug. R. 257. Crawford vs. Beall, Dudley R. 204. Lumpkin vs. Mills, 1 Kelly, 511. Toller, Bk. 3, ch. 11, §3. Comyn's Dig. Pleader, 2 d. 2. Tucker vs. Tucker, 1 Nev. & Man. 477. Chitty on Con. 849. B. N. P. 180. Fry vs. Evans, 8 Wend. 530. 20 J. R. 137. 6 Taunt. 448, 451. Steward vs. Eden, 1 Caines' R. 121. Cramond, et al. vs. Bank of the U. S. 1 Binney, 64. Murray vs. Williamson, 2 Ib. 155. Hills vs. Tallman's Admrs. 21 Wend. R. 674. Barbour on sett off, 129-135. Granger vs. Granger, 6 Hammond R. 41, cited in notes G. & 1. Chitty on Con. 849.

3d. That the Court erred in rejecting testimony offered to prove that there were debts outstanding, of higher dignity than defendant's set off, of sufficient amount to take all the assets belonging to plaintiff's intestate. 1 Chitty Plea. 526. 2 Starkie Ev. 321-326. 1 Chitty's Plea. 620, 607, 611, 606, note (d.) Buller's N. P. 180. Prince, 447.

HUNTER, for the defendant in error

Ray vs. Dennis.

Insisted that the decision of the Court below, overruling the motion to strike out the plea of defendant, was correct. Defendant in error was sued upon sundry notes given by him to plaintiff's intestate; defendant's set-off consists of an execution obtained against plaintiff's intestate, in his life-time, and also against defendant in error, as his security. The question is, can this execution, which defendant in error has been compelled to pay off since the death of his principal, be set off against the action upon said notes, brought by the administrator of his principal? The Court below, held that it might, and I think, held correctly. The following among other authorities, support the decision of the Circuit Judge. Theobald on Pr. & Sur. 150, 1. Dudley R. 206-7. Harper's S. C. R. 423. 8 Bacon, 656. 13 J. R. p. 9. In an action brought by an administrator, defendant may rely upon his set-off though 12 months since taking out letters have not expired. 2 Nott and McCord R. 399. 3 Stewart R. p. 151.

But it is contended that the Court below erred in rejecting the proof tendered by plaintiff in error, on the trial, to show that the defendant in error paid off the fi. fa. after the death of his principal, E. W. Dennis, dec'd. I reply to this objection in the language of the Court below, that this execution was a judgment debt against principal and security, at the time of E. W. Dennis' death, and the time of payment is therefore immaterial. Could the plaintiff in fi. fa. have set off the same in a suit brought by Dennis' administrator against him? I say he might, for the reason, that the execution is the several as well as joint debt of E. W. and J. Dennis. Chitty's Pl. p. 603, note 2. 2 T. R. 32. Isaac Dennis, the security, having paid off the fi. fa. is subrogated to all the rights that the plaintiff in fi. fa. had, and entitled to enforce all his remedies. No authority need be cited to sustain this proposition, it having been recognised as good law by this Court.

But it is said farther, in argument, that the Court below erred in rejecting the testimony offered to prove that there were debts against the estate, of higher dignity than defendant's set-off, of sufficient amount to absorb all the assets belonging to plaintiff's intestate. I reply to this position by saying, that in this case, the pleadings did not admit of the introduction of the evidence; and again, it is well settled, that if the affairs of an estate are so much involved that they cannot be safely administered at law, the administrator