Opinion
Decided February 7, 1905.
In an action against an administrator for the recovery of a debt due from the intestate, the defendant cannot set off his personal claim against the plaintiff's demand.
ASSUMPSIT. Facts agreed, and case transferred from the June term, 1904, of the superior court by Stone, J.
Sargent, Remick Niles, for the plaintiffs.
Arthur L. Foote, for the defendant.
The plaintiff McCaffrey, having a claim against the defendant's intestate, assigned the same to the Knowles-Lombard Company; and the latter party, after notice of the assignment to the defendant, caused this suit to be brought thereon, in which it appears as plaintiff in interest. Before the suit was begun the heirs of the intestate assigned their respective interests in the estate to the defendant in his individual capacity. The defendant, admitting that a large part of the plaintiff's claim against the intestate is valid, seeks to set off a claim which McCaffrey owes him personally. Extended discussion of the question thus presented is unnecessary. "If there are mutual debts or demands between the plaintiff and defendant at the time of the commencement of the plaintiff's action, one debt or demand may be set off against the other." P.S., c. 223, s. 7. The debt sued on and the one pleaded in set-off are not mutual. As an administrator, the defendant could maintain no action against McCaffrey to recover the amount of the set-off, for non-assumpsit would be a perfect defence. By seeking to recoup the same debt when sued as an administrator, he occupies no better position in that respect. Brown v. Warren, 43 N.H. 430, 435; Goodwin v. Richardson, 44 N.H. 125; Mathewson v. Bank, 45 N.H. 104, 109; Woodward v. Tupper, 58 N.H. 577; Leavitt v. Peabody, 62 N.H. 185.
The set-off is disallowed, and according to the terms of the case, the plaintiffs are entitled to judgment for $415.92, with interest from December 10, 1902.
Case discharged.
All concurred.