Wisconsin Reports; Cases Determined in the Supreme Court of Wisconsin Volume 20 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1867 edition. Excerpt: ... one third part of any costs and expenses which might be incurred, &c. This is an averment of a several promise on the part of Mr. Boys to pay one third of the expenses of collecting the mortgage, and as such would seem to be the proper subject of a counter-claim within the statute. But my examination of the question whether this claim can be allowed as a set-off has led me to doubt its validity as a counter-claim, or whether the statute regulating counter-claims can be applied to an action brought by an executor or administrator for a debt which has accrued to him since the death of his testator or intestate. The courts of other states and of England have, as will presently be shown, invariably refused to allow the defendant to set-of1" a demand against the testator or intestate in such cases, on the ground that it would change the course of distribution. The eifeet of allowing a counter claim would be the same, and in this respect the distinction VoL. XX---26 between a set-oif and counter-claim, wherever one exists, would seem to be immaterial. The allowance of either would diminish the assets in the hands of the executor or administrator, and alter the course of distribution in proportion to the sum allowed. I am not, therefore, satisfied whether this claim against the deceased, Mr. Roys, can or cannot be allowed as a counterclaim to this action, and I leave it, so far as I am concerned, undecided. As to the individual promise of Mr. Pinney to pay one third of the costs and expenses of collecting the mortgage, it is clear that cannot be the subject of a counter-claim. It is not a claim in favor of the defendant against the plaintiff. It is a claim against a third person, not a party to this action. If Mr. Pinney had...