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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
Rapier, as administrator of Mays, brought an action of debt in the Circuit Court of Lauderdale county, against Holland and Bruce, on their bill single, payable to him as administrator. Defendants pleaded, first, payment to plaintiff; to which there was a replication and issue; secondly, that Mays, at the time of his death, was indebted to Holland, the principal in the bill single, in a larger amount than the sum claimed in the declaration for work done, materials, etc., etc. Replication: th at the estate of Mays, at the time of commencing the suit, had been declared insolvent, and commissioners appointed to audit the claims against it, etc. Special demurrer to this replication and joinder. The Circuit Court sustained the demurrer. Rapier prosecuted a writ of error to this court, and assigned this master as error.
Coalter, for plaintiff in error; Martin, for defendant in error.
LIPSCOMB, C. J.If we were to admit that the special replication of the plaintiff was bad, we should bound to look back to the first error of the party demurring; there can be no doubt but that the defendantsí plea of set-off was bad, and would have been so held on general demurrer. In an action on a promise made to an administrator, a debt due from his intestate cannot be set off; the demands are in different rights; to set off the last against the first might do injustice to the rights of other creditors, and with our statute as to insolvent estates, etc., would tend to involve estates in endless confusion.
Judgment reversed and cause remanded.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), p. 177.
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