18 Pa. Super. 282 | Pa. Super. Ct. | 1901
Opinion by
The surviving partner of a firm composed of two persons engaged plaintiff, one of their customers who was indebted to them, to work for a new firm formed to carry on the business after the death of his copartner. The persons constituting the new firm were the surviYing partner, the widow and the sole heir of the deceased partner. May they set off plaintiff’s debt to the old firm against his claim against the new firm?
In Hibert v. Lang, 165 Pa. 439, Mr. Justice Mitchell after reviewing many of the earlier cases, summed them up as follows : “ The result of these cases is that although in general in
But in Filbert v. Hawk, 8 Watts, 443, Kennedy, J., referred with apparent approval to the English cases in which it was “ held no objection to the set-off of a debt that the defendant had commenced an action for the recovery of that debt before the plaintiff’s cause of action accrued.” True, in Good v. Good, 5 Watts, 116, it was held that a defendant cannot avail himself by way of set-off, of a debt against the plaintiff for which a suit is pending, on an appeal from arbitrators by the party offering such set-off. This ruling was followed in a case involving the same state of facts in Hugg v. Brown, 6 Whart. 468. In Hershey to the use of Walker v. McLaughlin, a case recently decided by this court, it appeared that McLaughlin had brought an action of replevin against Walker and failed. The replevin bond contained a confession of judgment, and after the determination of the replevin suit judgment was entered upon it and a scire facias issued against McLaughlin. In the trial of that issue McLaughlin offered as a set-off a claim against Walker
For the foregoing reasons the fourth assignment of error is sustained.
Judgment reversed and venire facias de novo awarded.