| Md. | Jun 30, 1880
delivered the opinion of the Court.
In 1864, the appellant, Edwin N. Tyrrell, conveyed to his two sons, John P. and Joseph B. Tyrrell, all his real and personal estate, consisting of a small hut well stocked farm; and in consideration thereof, the grantees agreed to pay to him one hundred and eighty dollars annually during his life.
The grantees took possession of the property, and paid to the grantor the annuity regularly until April, 1868, since which time no payments have been made on account of the same.
This hill is filed to enforce the payment of arrearages due on the annuity, and in default of payment for the sale of the land.
Against these arrearages of annuity, John P. Tyrrell, one of the obligors, files an account for necessaries furnished his mother, the wife of the complainant, and the question presented by this appeal, is whether he is entitled to claim this account as a set-off to the complainant’s demand.
There is some proof in the record to show that the wife left her husband, the complainant, about twenty years ago, and that she was induced to do so in consequence of his harsh treatment to her, and that for the past eight or nine years, her son, John P. Tyrrell, has furnished her with hoard and clothing.
Whether the complainant is liable for necessaries thus furnished his wife, under the proof in this case, is a question not necessary to he decided here, for he that as it
Set-off is a privilege conferred by statute, or if it existed at all at common law, it was limited to mutual and connected debts, and did not extend to debts unconnected with each other. Balto. Ins. Comp’y vs. McFadon, 4 H. & J., 31.
It is in the nature of a cross claim, and is confined to mutual debts between the plaintiff and defendant.
In Hall’s Adm. vs. Creswell, et al., 12 G. & J., 37, the Court said:
“The right of set-off is reciprocal, and mutual claims, and such as are in the same right, alone can he set-off.
And in Milburn vs. Guyther, 8 Gill, 92, and Wilson & Co. vs. Keedy, &c., 8 Gill, 195, it was expressly decided, that a joint debt could not he set off against a separate, or a separate debt against a joint debt. See also Scott vs. Scott, 17 Md., 18.
It is very clear, therefore, that a separate debt claimed to he due John P. Tyrrell, cannot he set off against a joint debt due by him and his brother.
For these reasons the decree below must he reversed, and the case remanded for further proceedings.
Decree reversed, and case remanded for further proceedings.