Sec 1022

When an executor sues in his representative capacity, a debt due by him personally cannot be set off by the defendant, nor when he sues as an individual can a debt due by him as executor be set off;1 nor, under the English statute, when an executor sues for a debt accruing to him as such after his testator's decease, can a debt due to the defendant from the testator in his lifetime be set off;2 nor to an action by the executor for a debt due the testator at his death can there be set off a promissory note of the testator that accrued after his death.3 The debt of an ancestor, also, cannot be set off to meet a suit by the heir, although the heir came into possession by descent of assets which might have been made chargeable with the debt.4 But to a suit for a debt due the deceased during his lifetime, all debts due by him in his lifetime may be set off; and the converse also holds good.5 In this country a still more liberal practice has grown up, mutual debts being set off against each other after the death of one of the parties without regard to the period of maturity;6 though, in cases of insolvency, set-offs of this class will not be permitted where the effect is to disturb equality of distribution.7 In equity it is held that to a suit by a distributee an administrator may set off a debt due by the distributee to the administrator in his own right.8 And an executor may retain a legacy by way of set-off against a debt due from the legatee to the testator.1

Personal debts cannot be set off against representatives.

1 Leake, 2d ed. 1013; Bishop V. Church, 3 Atk. 691; Isberg V. Bow-den, 8 Exch. 854; Grew V. Burditt, 9 Pick. 265; Wolfersberger V. Bucher, 10 S. & R. 16; Dale V. Cooke, 4 Johns. Ch. 11; Fry V. Evans, 8 Wend. 530; Hills V. Tallman, 21 Wend. 674; Armstrong V. Pratt, 2 Wis. 299; Harbin V. Levi, 6 Ala. 399; Jones V. Brevard, 59 Ala. 499; Bales V. Hyman, 57 Miss. 330; see Bailey V. Finch, L. R. 7 Q. B. 34.

2 Leake, 2d ed. 1013; 2 Wms, on Ex.

1596; Schofield V. Corbett, 11 Q. B. 779; Rees V. Watts, 11 Ex. 410.

3 Newell V. Bank, L. R. 1 C. P. D. 496; see Mardall V. Thelusson, 6 E. & B. 976.

4 Scott V. Scott, 17 Md. 78.

5 Blakesley V. Smallwood, 8 Q. B. 538.

6 Mercein V. Smith, 2 Hill, 210; Dor-sheimer V. Bucher, 7 S. & R. 9.

7 Bosler V. Bank, 4 Barr, 32; Granger V. Granger, 6 Ohio, 35; Poorman V. Goswiler, 2 Watts, 69.

8 Taylor V. Taylor, L. R. 20 Eq. 155; cited Leake, 2d ed. 1014; see Farrow V. Farrow, 12 S. C. 168.

Sec 1023

"When an agent deals as such, and a suit is brought by the principal on a debt incurred to the agent as agent, a debt due by the agent to the defendant cannot be set oft'.2 But when the principal is not known in the transaction, and when the agent is permitted by the principal to appear as the sole party in interest, then the defendant may offer as a set-off debts due to himself by the agent.3 The question is one of notice. If it was the duty of the defendant to have advised himself of the fact of agency, then he cannot set up the agent's debts to him against the principal.4