4 Mo. 233 | Mo. | 1835
Lead Opinion
Opinion of the court delivered by
This was an action commenced in the circuit court by petition and summons by the appellants against the ap-pellees on a single bill obligatory. The defendants in the c‘l’cu't court pleaded payment and set-off. The plaintiffs in the circuit court joined issue on the plea of payment and demurred to the pica of set-off. Thedemurrer was over-ru^e<^ anc* the issues were found by the court, sitting as a jury for the appellees, and on the plea of set-off, a judgment was given for the defendants against the plaintiffs the circuit court; to reverse which, the plaintiffs below have come by appeal into this court. Ihe plaintiffs were administrators of one William Whaley deceased, promissory note sued on was given to them in fbat character. Styling them administrators &c., the defendants were distributees of the estate of William Whaley deceased. — At the February term of the county court of Washington county 1835, Whaley and Blackwell, the administrators oí William Whaley deceased, settled up their administration and were ordered by the court to make distribution of the balance remaining in their hands to the heirs and distributees of said William Whaley dec’d. — the appellees were two of the heirs and distributees, and the sum set-off against the appellants, was the amount of their joint portions of the sum. ordered to be distributed by the county court as aforesaid.— The plaintiffs on the 5th of May 1835, commenced their action against the appellees. The question submitted for consideration is, whether the demurrer to this plea of set-off-was rightly overruled or not. Our statute regulating set-off, provides‘‘that if two or moie persons be mutually indebted to each other, by judgments, bills, bonds,.bargains,promises, accounts or the like, and one of them commences an action in any court, one debt may be set off against the other, notwithstanding such debts
Several authorities have been cited by the counsel for the appellees, which maintain that in an action on a joint note, the individual debts due to either of the defendants may be set off. — 2 Tyler’s Rep. 391. — 1 Marsh.5s Rep. 20 — 12 Serg. & R. 252. We cannot see that any injury is likely to arise from this doctrine, but on the contrary, that justice and convenience may be often promoted and circuity of action prevented thereby. It has been also objected by the counsel for the appellants, that there is no mutuality in the indebtedness of the parties; we think differently. The statute does not intend that the parties must be in like condition to coerce the. payment of their respective debts, but simply, that the indebtedness shall be such as to entitle the person wishing to set it oil, to his action at law. Upon the whole matter, therefore, the judgment of the circuit court is affirmed with costs.
Dissenting Opinion
dissenting
I do not concur in this opinion; — the law requires that the parties shall be mutually indebted. The plaintiffs in this action sued on a bond made to them jointly by the defendants. The defendants set off a sum of money, made up of two demands, one of which, each of the defendants has in his own several right against the admiras-trators. But this is by no means the most serious