Tustin v. Cameron

5 Whart. 379 | Pa. | 1840

Per Curiam.

This case has every feature of Wrenshall v. Cook, except the plaintiff’s insolvency. Such a feature, however, is not an essential one; though, existing in that case, it was stated as a circumstance to make the expediency of a set-off more apparent. It is the practicability of avoiding circuity and needless costs with safety and convenience to all parties, which determines the question of set-off: .and an increasing liberality has greatly, but cautiously and beneficially enlarged the doctrine within a few years past. Thus in Childerston v. Hammond, (9 Serg. & Rawle, 68,) and Stewart v. Coulter, (12 Serg. & Rawle, 252,) a defendant jointly sued, was allowed to set off the plaintiff’s debt separately due to himself; a superior equity in a third person not being in the way. Is not that the converse of our case, in which a defendant separately sued proposes to set off a partnership debt with the assent of his partners? In Henderson v. Lewis, (9 Serg. & Rawle, 379,) a debt due to the plaintiff by a co-obligor sued but not summoned, was not allowed to be set off with the co-obligór’s assent, only because he was effectively a stranger to the action; and a third person is never suffered to make it a medium of recovery by cross action, without risk of costs. That is very different from a recovery of the defendant’s own demand with the license of those who have a concurrent interest in it. Such is a partnership cross demand; and it is ground of defence here.

Judgment reversed and a procedendo awarded.