5 Ga. 357 | Ga. | 1848
By the Court
delivering the opinion.
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, oould 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 ai'e to be paid can operate — that-iStatute 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
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 devastavit, 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