Boinod v. Pelosi, 2 Dall. 43 (C. P. Phila. Cty. 1788)

Loyer, an Insolvent Debtor, after his insolvency, deposited with the plaintiff an Atlas, to be sold, and the defendant purchased it at Boinod's store. Discovering that the Atlas had belonged to Loyer, the defendant, who was one of his creditors, refused to pay for it to the plaintiff, insisting that he had a right to set-off his debt against the price. The plaintiff thereupon summoned him before a Justice of the Peace; and, the Justice refusing to admit the set-off, the defendant appealed from that decision.

On the trial of the appeal, Heatly contended, for the defendant, that the set-off ought to have been allowed under the insolvent law. 1 Vol. Dall. Edit. p. 164. But even if the Justice was right in his refusal, he said the action could not be maintained in Boinod's name, as the assignees were alone entitled to sue for the effects of the insolvent, after his assignment.

Du Ponceau, for the plaintiff, observed, that there was no set-off at common law; and that it had not been authorised by any legislative provision in the case of a factor; which was the situation of his client. Cowp. 255. As the assignees are not contending parties, it is unnecessary to show that Boinod had a lien. Ibid.

In the charge to the jury, Shippen, President, stated, that this was an action for goods sold and delivered; that the plaintiff had an indisputable right to bring the action, either in his own name, or in the name of his principal; and that he had properly chosen the former, as the contract was made with him. That, in answer to the defendant's allegation, of the property's belonging to Loyer, it was to be remarked, that after the assignment, the property was for the benefit of all Loyer's creditors; and that, although his factor might have a lien, the vendee of the factor certainly had none. That, in strictness, perhaps, the assignees of Loyer had the right to the Atlas, or the price for which it sold; but that certainly, at the time of the sale, it was not the property of Loyer, and, if not vested in the assignees, it must have belonged to Boinod by virtue of some special lien: And that, upon the whole, the plaintiff was entitled to recover, though he was answerable over to the assignees.

Verdict for the Plaintiff.