of that state? This answer was filed nine years after the grant of administration to him, and there was yet no settlement. As administrator, appointed in South Carolina, Lindsey is unquestionably amenable to her laws for his administration of the assets found there, and is liable to be called to account there for his conduct as administrator. And although the courts of this state may not undertake to enforce the laws of that state in this respect, they are bound to give him the benefit of them, by paying due respect to the decree of any court of that state in the premises, and to any law of that state which may prescribe the duties of the administrator. But we do not concede, that because he was appointed administrator there, and received the assets there, he can not be held responsible to any extent, and under any circumstances, in the tribunals of this state, for the surplus remaining in his hands, and to which citizens of this state are, according to all laws, justly entitled. In the case of Campbell v. Tousey, 7 Cow. 64, the supreme court of New York decided that a foreign executor coming into that state, might be sued there and held responsible for assets in his hands in that state. In Pennsylvania the same doctrine is understood to have been maintained in the cases of Swearingen's Ex'rs v. Pendleton's Ex'r, 4 Serg. & R. 389-392; Evans v. Tatem, 9 Id. 252-259 [11 Am. Dec. 717]; and Bryan v. McGee, 2 Wash. 337. And in this court, the cases of Hopkins v. Towns, 4 B. Mon. 124 [39 Am. Dec. 497], and Davis v. Connelly's Ex'r, Id. 140, seem to incline to the same doctrine. Other authorities of great weight are of a contrary tenor. But the case of Dorsey's Ex'rs v. Dorsey's Adm'rs, 5 J. J. Marsh. 230 [22 Am. Dec. 33], decided in this court, is directly in point to the present question, since it decides explicitly that the distributee of the decedent may enforce distribution here, if the Maryland administrator shall have removed and settled in this state, p. 282.

Upon the express authority of this case, and under our own sense of what is required by convenience and justice, and of the comity due to the sovereignty and laws of South Carolina, we are of opinion, that the mere fact that Lindsey was appointed administrator in that state, and received there the assets for which he is now charged, does not of itself exempt him from all liability to be sued in the tribunals of this state, for a claim growing out of his having thus received the assets, to the proceeds of which the complainants or some of them are entitled. Whether any decree should finally be rendered against him on this account, may depend upon the facts disclosed in his answer,

and upon the proof. But we think he was bound to answer, and that the exceptions to the answer filed, should have been sustained. Whether the administrator, who was made a joint complainant with the heirs of Atchison, can be entitled to any specific decree in his favor, it is unnecessary, in the present stage of the case, to decide. He was a proper party in this suit, and his being made a co-complainant, does not affect the right of the heirs to the appropriate relief.

The decree dismissing the bill is reversed, and the cause remanded, with directions to sustain the exceptions to Lindsey's answer, and for further proceedings.

EXECUTOR OR ADMINISTRATOR, LIABILITY OF, IN A FOREIGN JURISDIOTION, FOR PROPERTY OF DECEDENT: See note to McNamara v. Dwyer, 32 Am. Dec. 632, where the subject is discussed. An administrator, who is appointed in another state and removes into Kentucky, may be sued there and compelled to account for assets received in such other state: Manion's Adm'r v. Titsworth, 18 B. Mon. 597, citing the principal case; Dorsey Dorsey, 5 J. J. Marsh. 230; Baker v. Smith, 3 Metc. (Ky.) 264.

PERSONAL PROPERTY, WHEREVER SITUATED At the Death oF THE OWNER, passes according to the laws of the country of his last residence: Thomas v. Tanner, 6 Mon. 52; Chapline v. Moore, 7 Id. 151; Warren v. Hall, 6 Dana, 450; Fletcher's Adm'r v. Sanders, 7 Id. 346; Adam's Heirs v. Adams' Adm'r, 11 B. Mon. 77; Townes v. Durbin, 3 Metc. (Ky.) 352; Sneed v. Ewing, 22 Am. Dec. 41.

JEFFRIES v. EVANS ET AL.

[6 B. MONROE, 119.]

RIGHT TO AN OFFSET IN CHANCERY EXISTS INDEPENDENTLy of Statute, and is controlled only by the general principles of equity.

ONE MEMBER OF A FIRM WILL BE ALLOWED IN EQUITY TO OFFSET HIS OWN JUDGMENT against an insolvent debtor seeking to enforce a judg. ment against such firm.

Assignee of a Judgment Takes only a Subordinate Equity where there are mutual judgments existing between the original parties prior to the assignment.

THE facts are stated in the opinion.

Harlan and Craddock, for the plaintiff.
B. and A. Monroe, for the defendants.

By Court, BRECK, J. Jeffries exhibited his bill, and obtained an injunction, restraining the collection of a judgment obtained against him, H. S. Myers, and J. W. Evans, by Alexander Evans, before a justice of the peace, for twenty-one dollars and eighty-four cents and costs. He alleges that this judgment had

been assigned by the plaintiff, to one Hanson Musgrove; that prior to its rendition, he had obtained two judgments against Alexander Evans, one for about fifteen dollars, and the other for about eleven dollars, upon both of which executions had been returned "no property found;" that Evans was insolvent, and he prays that his judgments against him may be set off against the judg ment recovered by said Evans. He makes said Evans, Musgrove, Myers, and J. W. Evans, defendants. Musgrove alone answers, claims the judgment in favor of Alexander Evans, by assignment, and resists the relief sought by the complainant. The circuit judge dissolved the injunction, and dismissed the complainant's bill with damages and costs, and he has brought the case to this court for revision.

We are of opinion the decree is erroneous, and must be reversed. The relief sought by the complainant, does not depend upon our statute authorizing set-offs. That statute is applicable only to suits at law. The right to an offset in chancery exists independent of the statute, and is controlled only by the general principles of equity. In this case the complainant was responsible for the judgment in favor of Evans, and to be relieved against such responsibility, he had a right, as Evans was insolvent, to set up his claims upon him in a court of equity. It is true the judgment was against him and others; but that fact did not affect his liability, and from anything that appears in this record, he was equally entitled to relief as if the judgment had been against him alone. Musgrove, by the assignment of Evans' judgment, obtained merely an equity, which was junior and subordinate to the elder equity of the complainant, which existed at the rendition of Evans' judgment, and of course prior to the assignment. Whether the complainant could or not have relied upon the offset at law, it is not necessary to decide, as even in that case, according to the principle recognized in Merrill v. Souther and Fowler, 6 Dana, 305, the chancellor would nevertheless have had jurisdiction.

The decree is reversed, and the cause remanded, with directions to perpetuate the complainant's injunction.

SET-OFFS IN EQUITY.-Mutual credits are a ground for set-off in equity, though not at law. Hence a decree in favor of the plaintiff, seeking a partnership account, may be set off against a judgment at law in favor of the defendant in the decree, and against the plaintiff: Lockwood v. Bates, 12 Am. Dec. 121, and note 136. The right of the debtors of a bank to an equitable set-off of their demands is not affected by the appointment of a receiver upon its stopping payment: In re Receiver of Middle District Bank, 19 Id. 452. Set-off for money advanced is available in chancery as against a bond

and mortgage on which suit is brought, and a cross-bill is not necessary for its assertion: Chapman v. Robertson, 31 Id. 264. Claim against an insolvent estate may be offset in chancery against one in favor of the estate, although the claimant, owing to an agreement of the administrator to allow it, neglected to present his claim to the commissioners on the estate: Nims v. Rood, 34 Id. 669. Counter-claim, in order to constitute a set-off in equity, must be mutual, or it will not be allowed: Bunting v. Ricks, 32 Id. 699. In equity, where demands are in reality mutual, they may be set off, though they are not nominally mutual: Foot v. Ketchum, 40 Id. 678. Unliquidated damages are not subject of set-off, either in law or equity: Dugan v. Cureton, 31 Id. 727, and cases collected in the note. Set-off in equity, under the New York revised statutes, is governed by the same principles as at law: Jennings v. Webster, 35 Id. 722, and note; but a decree in equity may be deferred to enable the claimant to have it liquidated: Nims v. Rood, 34 Id. 669.

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PEARSON ET AL. V. KEEDY ET AL.

[6 B. MONROE, 128.]

EACH PARTNER HAS A RIGHT TO HAVE THE EFFECTS OF THE FIRM APPROPRIATED to the firm debts, and has in equity a lien upon those effects to secure not only this appropriation, but also any final balance in his own favor.

CREDITOR OF A FIRM, UPON THE DEATH OF ONE PARTNER, can not go into chancery, as a matter of course, to coerce satisfaction of a legal de mand out of the effects of the firm in the hands of the survivor, bas only upon the insolvency of the latter, and the consequent inefficiency of the legal remedy.

WHETHER, AS THE INSOLVENCY OF THE SURVIVING PARTNER IS THE SOLE GROUND of the creditor's right to go into chancery, a bill can be entertained that does not show the inefficiency of the legal remedy by a judg. ment and return of "no property" against the survivor, quære. INSOLVENCY OF THE SURVIVING PARTNER AND THE INSUFFICIENCY OF THE

Legal Remedy, being the only ground upon which a creditor of a partnership can go into equity, it is necessary that this fact should be clearly and explicitly stated in the bill.

WHERE A BILL DOES NOT SHOW A CASE FOR EQUITY JURISDICTION, it does not operate as a lis pendens, though process be served, so as to affect the choses in action sought to be subjected, or to overreach, on that ground alone, the settlement thereof made between the survivor and the debtors of the firm.

FRAUD ALLEGED IN A BILL AGAINST UNKNOWN HEIRS IS PUT IN ISSUE by a traverse, and must have been proved before a decree can be rendered.

PARTNERSHIP FUNDS COMING INTO THE HANDS OF A SURVIVING PARTNER
who has been appointed administrator of the deceased partner, come to
him as survivor, and not as administrator.

THE facts sufficiently appear in the opinion.
Fry and Page, for plaintiffs.

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Morehead, Reed, Cates, and Lindsey, for the defendants.

By Court, MARSHALL, J. We do not find, either in principle or precedents, any authority for the position that the creditor of a firm may, upon the death of one of the partners, go into chancery as a matter of course, to coerce satisfaction of a legal demand, out of the effects of the firm in the hands of the survivor. If the survivor is solvent, the legal remedy against him is plain, and as efficient to reach the effects of the firm in his hands, of whatever description they may be, as the like remedy against any other individual is, to reach his effects of the same species. The survivor is, at law, the only debtor of the firm creditor, and through him the visible effects of the firm in possession, and of which, for the purpose of paying debts, he is entitled to the custody and control, are accessible by legal execution. The debt being his own, his individual property, which had never belonged to the firm, is also accessible in the same manner. There is, therefore, no failure of the legal remedy while either the effects of the firm or those of the survivor, of a species liable to execution, remain in his hands; and as it is immaterial to the creditor whether his debt is satisfied out of the individual effects or out of those which had belonged to the firm, even the conversion of the latter into choses in action, gives him no cause for going into chancery to reach them, while the former remain accessible to his legal remedy.

Each partner has unquestionably a right to have the effects of the firm appropriated to the firm debts, and has, in equity at least, a lien upon those effects to secure not only this appropriation, but also any final balance in his own favor. The creditor of the firm has no such lien in himself, but only a derivative equity based upon the rights of the partners themselves. In virtue of which he may, in case of the death of one and the insolvency of the survivor, be substituted to the right of the deceased or his representatives, to have the partnership effects appropriated to the partnership debt. But this right of substitution is based on necessity arising from the insolvency of the survivor, and the consequent inefficiency of the legal remedy: 2 Story's Eq., sec. 53, pp. 500, 501.

This being the ground on which, independently of any statutory remedy, a creditor may go into a court of equity to subject the choses in action of the firm, in the hands of a surviving partner, to the satisfaction of his claim against the firm, it may be doubted whether, in seeking the aid of the chancellor upon this equitable principle, he will be allowed to give precedence to his

AX. DEO. VOL. XLIII-11