20 Johns. 137 | N.Y. Sup. Ct. | 1822
delivered the opinion of the Court.
The statute, (1 N. R. L. 515. sess. 36. c. 56.) provides, that if two or more persons, dealing together, he indebted to each other, or have demands, arising on contract or credits, against each other, and one of them, or his or her executors or administrators, sue any one or more of the others, his or their executors or administrators, in any Court, &c., if the defendant cannot gainsay the deed or assumption, upon which the suit is brought, it shall be lawful for such defendant to plead the general issue, and give notice in writing, with the said plea, of what such defendant will insist upon at the trial, for his or her discharge, and to give any such bond, bill, receipt, account, contract, credit, or demand, so given notice of, in evidence. The act then provides, that if it. shall appear that the sum demanded is paid, the jury shall find for the defendant, and he shall recover his costs; if any part shall be found to be paid, then so much shall be discounted, and the plaintiff have judgment for the residue ; if the plaintiff is overpaid, then the jury shall find for the defendant, and certify the balance, whereon the defendant shall have judgment, unless the plaintiff prosecute as executor or administrator, in which case, the sum so certified shall be deemed a debt of record, to be paid in the course of administration.
, Were the intestate and the defendant indebted to each other, or had they demands arising on contracts or credits against each other? If they were not indebted to each other, or if they had not demands arising on contracts or credits against each other, the case is not" within the letter or spirit of the act. In Gordon v. Bowne, (2 Johns. Rep. 155.) this Court held, that the statute of 2 Geo. II. ch. 22. s. 13. which enacts, that where there are mutual debts between the parties, they may be set off; and our statute, which provides, that if two or more persons, dealing together, be indebted to each other, were expressions of the same import, and that the English decisions upon the construction of their' statute, are in point as to the construction of our act. In Kilvington v. Stevenson, in a note in Willes’ Rep. p. 264. the
Motion for new trial denied.