Robert Jeffs the plaintiff's father and testator, having a nephew the defendant Wood, receive him when an infant, on his father's death, into his (the said Jeffs) family,669 and provided him with clothes, and ,sent him to school; after which he took him apprentice in the trade of a wine cooper, and as to all expenses of clothes, learning, and board, kept an account in his books; but after he became an apprentice, then the board was omitted in the account.
[129] Then Jeffs the father by his will gave £500 to the defendant his nephew, and made his son the plaintiff Jeffs his executor and residuary legatee, and died.
The plaintiff Jeffs the son gave the defendant Wood credit for wine, and intrusted him to receive monies; so that the defendant Wood became further indebted to the plaintiff.
On the defendant Wood's suing the plaintiff Jeffs the executor, in the spiritual court, for this £500 legacy, the plaintiff Jeffs brought his bill first against Wood, and he becoming a bankrupt, against the assignees under the commission, to have an allowance made him, out of the legacy, for the money which the bankrupt the legatee owed to the testator, and likewise to the plaintiff Jeffs; and on the other hand the assignees brought their cross bill against Jeffs for the legacy.
Master of the Rolls. It is true, stoppage is no payment at law, nor is it, of itself, a payment in equity, but then a very slender agreement for discounting or allowing the one de of the other, will make it a payment, because this prevents circuity of action and multiplicity of suits, which is not favoured in law, much less in equity.
But it may be a doubt, whether an insolvent person may in equity recover against his debtor, to whom he at the same time owes a greater sum; though I own, it is against conscience that A. should be demanding a debt against B. to whom he is indebted in a larger sum, and would avoid paying it.
[130] However, it see s that the least evidence of an agreement for a stoppage will do (vide 1 Vern. 122 ; 2 Vern. 428 ; Preced. in Chan. 582) ; and in these cases equity will take hold of a very slight thing to do both parties right. And it is still more reasonable, that where the matter of the mutual demand is concerning the same thing, there the Court should interpose, and make the balance only payable.1
Now in the principal case, the defendant's the legatee's demand is in respect of the testator's assets, without which the executor is not liable; and it is very just and equitable for the executor to say, that the defendant the legatee has so much of the assets already in his own hands, and consequently is satisfied pro tanto; and forasmuch as it is probable the Spiritual Court will not allow of this discount, therefore the suit here is very proper, in order to have such an allowance.
So that if the legatee himself had brought the bill for his legacy, it had been very proper for the executor to have insisted, that the legatee owing so much to the testator, and having already so much in his hands of the testator's assets, was consequently paid so far.
In the present case, the assignees of the commission of bankruptcy against the defendant Wood bring their bill for the legacy, and standing in the place of the legatee, can be in no better case ; and therefore, as the legatee; had he brought his bill for the legacy, might have been told by the executor, that having so much of the assets in his hands, he was consequently paid so much of his legacy, surely the same thing may now be insisted upon against the assignees, who stand in the place of, and represent the legatee.
[131] Then it was objected, that this demand of the defendant Wood, or of the assignees, was not a debt but a legacy, and a matter demandable in the spiritual court where it was sued for,. till such suit was stopped by injunction; and that the statutes of bankrupts mention only debts due from and to the bankrupt.
But to this it was answered and resolved, that a legacy due from an executor who admits assets (as in the present case), is in equity a debt due from such executor, and an equitable demand is a debt within the statutes of bankrupts.
3dly, As to the money or goods lent or delivered to the defendant Wood by the plaintiff the executor, this was held by the Court to be in part of payment, and that it must necessarily be so taken; otherwise the plaintiff would have credited the defendant Wood therewith; and by the same reason that if the legatee had sued in equity, the executor might have said and insisted, that the plaintiff had received so much of the legacy by money and goods, and that the defendant was ready to pay the rest, so the assignees claiming the legacy could not be in a better condition than the legatee himself.
4thly, The court took notice, that it was not material that the defendant was an infant when the clothes and education were provided for him by his uncle; for an infant may become indebted for these as well as a person of full age for money lent ; and670the testator's having kept an account, as between debtor and creditor, of all these charges, fully chewed they were not intended as gifts but loans.
[132] 5thly, That there could be no pretence to say, because the testator gave a legacy of £500 to the defendant Wood, therefore this was an argument or evidence that the testator intended to remit the former debt ; but if a man gives a legacy to his creditor to the amount of his debt, this has been construed a payment or satisfaction of the debt, because a man must be supposed to be just before he is bountiful. (Notwithstanding this general doctrine, yet where the testator has left wherewithal, and chewed his intentions so to be, he has been construed to be both just and bountiful. Vide Salk. 155, Cuthbert v. Peacock, and vol. 1, Chauncey's case, 408.)
Decree an account, and let the plaintiff pay only the surplus, after having deducted what is due from the legatee, as well to himself as to the testator, but no costs on either side (Ranking v. Barnard, 5 Madd. 32).
1Though now by the statutes 2 G. 2, c. 22, s. 13; 5 G. 2, c. 30, s. 28; 8 G. 2, c. 24, s. 5, mutual debts may be set off against each other at law, yet the power which, courts of equity exercised before the statutes was not taken away by them; and relief may be had in equity under particular circumstances where the nature of the debts will not admit of their being set off against each other at law. Ex parte Quinten, 3 Ves. 248. James v. Kynnier, 5 Ves. 108. Ex parte Stephens, 11 Ves. 24. Ex parte Twogood, ib. 517. Ex parte Hanson, 12 Ves. 346; 18 Ves. 232; 1 Rose, 156. Bradley v. Millar, 1 Rose, 273. Addis v. Knight, 2 Mer. 117. Vulliamy v. Noble, 3 Mer. 593. Ex parte Ross, Buck, 125. The stat. 5 G. 2, c. 30, s. 28, above cited, related to set-off in cases of bankruptcy, as to which see now the St. 6 G. 4, c. 16. s. 50.