8 Watts 74 | Pa. | 1839
A cardinal rule in the interpretation of statutes of set-off, requires that there be mutuality of demand both as regards the quality of the right, and the identity of the parties. Our statute is, in other respects, more remedial than the British; but no difference, as to the matter in question, can be thought to result from the difference of the words. The British statute gives a set-off, in express terms, only “ where there are mutual debts between the plaintiff and the defendant, or, if either party sue or be sued as an executor or administrator, where there are mutual debts between the testator or intestate and either party;” but the necessity of the same mutuality is as explicitly inculcated by our own, which gives a set-off “ if two or more, dealing together, be indebted to each other;” for it is the necessary effect of mutual dealings to produce mutual debts. Whatever be the difference in words, however, it is certain that it has produced no difference in practice. In regard to that mutuality of action which results from the quality of the right and the character of the party, we began by enforcing the rule in Danach v. Hays, 2 Yeates 208, and we have steadily pursued the same course through Murray v. Williamson, 3 Binney 35; Waln v. Anthony, 5 Serg. & Rawle 468; Jamison v. Brady, 6 Serg. & Rawle 466; Wolfersberger v. Bucher, 10 Serg. & Rawle 10; and Minich v. Cozier, 2 Rawle 111, to the present time. But though this species of mutuality is indispensable in that class of cases, it follows not that a set-off may be made in every instance where it is found; for though the fact that one of the parties is a naked trustee will not alone prevent it, as was intimated in Wolf v. Beales, 6 Serg. & Rawle 244, it may do so when assisted by circumstances; for if the consequences would endanger the security of a third person, the defendant would be restrained, as he was in Wilmarth v. Mountford, 8 Serg. & Rawle 124, where he was a creditor, and the plaintiffs were trustees of an insolvent debtor. In that case, however, there was not a perfect mutuality in respect to the quality of the right, inasmuch as the action was brought for the price of trust property which had passed to the plaintiffs by the assignment; and it was brought, therefore, legally in their own right. A more apposite instance is a set-off of the sheriff’s debt in an action by the assignee of a bail bond, which has been rejected in England. Yet defalcation is allowed there, as well as here, betwixt a separate creditor and a surviving partner as the legal plaintiff, though it is necessarily attended with a greater or less degree of risk to the representatives of the deceased partner for whom he is a trustee, to say nothing of the joint creditors. It is no greater, however, than what is incurred from every set-off against a trustee; and the foundation of the right seems to be the inconvenience, if not impracticableness, of going into a calculation of chances so remote as those of his eventual ability to make good the amount to the trust. Then as to the want of mutuality produced by a change of the relations
Judgment affirmed.