lipi 
 
 uii 
 
 iii
 
 .:mm»-% 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 SUMMARY 
 
 OF 
 
 THE LAW OF SET-OFF: 
 
 WITH 
 
 AN APPENDIX OF CASES 
 
 ARGUED AND DETERMINED 
 
 IN THE 
 
 COURTS OF LAW AND EQUITY 
 
 UPON THAT SUBJECT. 
 
 BY BASIL MONTAGU, ESQ. 
 
 Of Gray's Imi, Burrister at Law. 
 
 c:*>tm»>-::::' 
 
 XRW-YORK: 
 
 PRINTED nv AND FOR I. HILEY Sc CO. 
 
 lLe,citvi)ograpbtc Prfw* 
 18GG.
 
 T 
 
 KriL 
 
 3 3^00!
 
 TABLE OF CITED CASES. 
 
 ("The figures which immediately follow tlie names refer to the Summary, and 
 tliose which stand in the column refer to the Appendix.] 
 
 ABSOLOM V. Knight, page 18. 
 Atkinson v. Elliot, 48, 51, 52. 
 
 Barclay v. Hunt, 5. 
 Barker v. Braham, 5. 
 Barnes v. Crafter, 7. 
 Baskerville v. Brown, 38, 45. 
 Bavlev v. Morlev, 31. 
 Billon V. Hyde, 58. 
 Bishop V. Church, 34. 
 Bize V. Dickason, 32. 
 Blackbourn v Mattliias, 42. 
 Bottcmley v. Brook, 2". 
 Brown v. BuUen, 57. 
 Bulman v. Burkitt, 36. 
 Butler V. Innys, 6. 
 
 Clenlowe v. Lowe, 6. 
 Cockran v. Rt.binson, 40. 
 Collins V. Collins, 20, 45. 
 Colson V. Welsh, 19, 49. 
 
 pale V. Sollet, 1. 
 Decze, Ex parte, 47, 49. 
 Dennie v. Elliot, 11. 
 Dickson v. Evans, 56. 
 Dobson V. Lockhart, 2, 54, 55. 
 Dowsland v. Tliompson, 44. 
 Drinkwater v. Dowding, 29 
 Dunmore v. Tavlor, 21. 
 Duthy V. Tito, 7. 
 
 Edwards, Ex parte, 62. 
 Evans v. Prosser, 35. 
 
 Fletcher v. Dyche, 23. 
 Ford V. Miles, 6. 
 Freeman v. Hyctt, 22 
 French v. Andradc, 25. 
 V. Fenn, 25. 
 
 George v. Claggett, 31. 
 Gibson v. Hudson's Bay Co. 28. 
 Glai.stcr v. Hewer, 10. 
 Gower V. Hunt, 41. 
 Graham v. Fraine, 18. 
 Green v. Farnur, 1 
 Grimwood v. Barrit, 44. 
 Groomc,F.x parte, 54. 
 Gross V. Fisher, 37. 
 Grove v. Dubois, 32, 57 
 
 App. 
 
 42 
 
 Hale, Ex parte, 56. 
 Ht.ll V. Ody, 14. 
 Hampton v. Jarrat, 41. 
 Hancock v. Entwissle, 53. 
 Hankey v. Smith, 49. 
 Hooper v. Till, 36. 
 Howlet V. SU-ickland, 22. 
 Hutchinson v. Sturges, 19 
 
 James v. K^Tinier, 3. 
 27 Jacques v. Withy, 20. 
 Jeffs V. Wood, 48. 
 
 Kilvington v. Stevenson, 35 
 Knibbs V. Hall, 38. 
 
 Lanesborough v. Jones, 47, 61. 
 Laycock v. Tufthel, 18. 
 Lechmere v. Hawkins, 39 
 33 Lofting v. Stevens, 28. 
 Lock V. Bennet, 56. 
 
 12 
 
 17 
 
 M.irch V. Chambers, 56. 
 Martin v. Winder, 36. 
 Meliorucchi v. Exchange, 28 
 Mitchell V. Oldfield, 9. 
 Mordecai v. Nuling, 7. 
 Morland v. Hammersley, 12. 
 Muiray, Ex parte, 30. 
 
 NedrifF v. Hogan, 21. 
 Nunez v. Modjgliani, 6. 
 
 41 O'Connor v. Murphy, 11 
 Ockenden, Ex ]Kute, 50. 
 21 Ord V. Kuspini, 21, 41 
 
 17 Pitt V. Carpenter, 37. 
 21 Powell v. Smith, 7. 
 19 Prtscot, Ex parte, 52 
 Puller v. Roe, 26. 
 
 Qiiintin, Ex parte, 62. 
 
 Rabone v. Williams, 31. 
 
 Randle v. Fuller, 12. 
 
 Rtnnington t. .Stt \ens, 45 
 54 Reynolds v. Bccring, 35 
 
 RobeHs V. Bijrgs, 9. 
 
 Rudge V. Biroli, 27. 
 25 Ryal v. Row Is, 48. 
 
 App. 
 12 
 
 47 
 
 46 
 
 17 
 
 39 
 
 5 
 
 57. 
 
 2B 
 13 
 
 21 
 
 10 
 
 16 
 
 14
 
 VI 
 
 TABLE or CITED CASES. 
 
 Sapsforcl v. Fletcher, 18. 
 Schoole V. Noble, 11. 
 Sciimshirc v. AUU rton, 29. 
 Scoliin V. Robinson, 7. 
 Scott V. Surman, SO. 
 Sliij)iTian V. Thompson, 34. 
 Slipper V. Stidstone, 25. 
 Smith V. Barrow, 23. 
 
 V. De Silva, 2.3. 
 
 V. Hodson, 52, 59. 
 
 Stacy V. Decy, 26. 
 Sturdy v. ATiumd, 2. 
 Symmons v. Knox, 43. 
 
 App. 
 
 14 Tegetmeyer V. Lutnley, 35. 
 11 Terlo V. Lowe, 8. 
 
 Thrustout V. Grafter, 9- 
 
 Tito V. Duthy, 7. 
 
 Turlington's case, 5. 
 
 30 
 20 
 
 Vaughan v. Davies, 13. 
 
 Webster v. Scales, 27. 
 49 Weighail v. Waters, 22. 
 30,37 Whitehead v. Vaughan, 55. 
 4 Wills V. Crabb, 7- 
 44 Winch V. Keely, 27. 
 Wood V. Akers, 33. 
 
 TABLE OF CONTENTS. 
 
 Analysis, 
 Introductory Chapter, 
 
 Set-off at Law, 
 
 BOOK L 
 
 Section L 
 Set-off at Common Law, 
 
 Section II. 
 Set-off by Statute, ----- 
 
 Chap. I. 
 Set-off in General, . _ . 
 
 Chap. II. 
 Set-off in the Case of Bankrupts and 
 Insolvent Debtors, 
 
 Set-off in Equity. 
 Practice, 
 
 BOOK IL 
 
 App. 
 7 
 
 n 
 
 18 
 
 5 
 
 ib. 
 15 
 ib. 
 
 46 
 
 61 
 63
 
 >et-off.[23 n. AtComm 
 
 At Law. [5] <! 
 
 til. ByStatui 
 [I. In Equity. [6 1]
 
 ANALYSIS. 
 
 t 
 
 I. Connected accounts. C'l f". They aie the subjects of Set-off. [2] 
 
 Unconnected accounts. [!]■ 
 
 I. At Common Law. [5] 
 
 II. M.dei of set-off. [3] J, LH. By Statute, 
 
 lI.InEquity.[61] 
 
 c./ 
 
 I. In General. [15] 
 
 (The figures refer to tlie page in tlie Summary. 
 
 'T. Requisites to enable i 
 
 give a sct-ofi in cviUt^cc. | 
 
 II, Of a person's option to \ 
 
 ri. The demand of each party f I. The demand of the plaintiff. [ 1 8] 
 
 f I. There must be mutual debts.[ 17 k mus.t be a dcOc.lXH] < 
 
 a person to I (^ II. The demand of the defendant. [ 
 ience-Li?] < 
 
 11. The debt of each party must be due 
 nghfy except in the case of 
 and Admii istrators, when 
 be due bt-twecn the testator 
 _ or intestate and the other purty. [22] 
 
 II. The debt must be due at tlie 
 
 cncement of the a 
 
 .C35] 
 
 ivail iiimselfof his right 1 
 
 III. Of tlie plea< higs and of the fl. Of the defendant's optioi 
 
 mode of setting-ofidebts. [39] <^ notice ; and wliich mode is to be prtfcrred. [40] 
 
 l-off. [37] 
 
 [20] 
 
 I. Joint and several debts. [23] 
 
 II. Trustees. [27] 
 
 III. Principal and Agent. [29] 
 
 IV. Husband and Wife. [33] 
 
 _V. Executor and Administrator. [34] 
 
 IV. The Judgment.[45] 
 
 II. Of the nature of the notici 
 ^ and of die pltadint^s. [41] 
 
 {;. 
 
 The Notice. [41] 
 The Pleadings. [42 
 
 II. In particular Cases. [46] 
 
 {I. The Plea. [42] 
 II. The Replicatiol 
 
 f I. By the particular Statute in f I. Requisites for a balance fl. Mutual debts oi 
 ri. In Bankruptcy. [46] -^ tnecaseof bankruptcy. [46] <J of accounts. [47] < 
 
 [44] 
 credits. [47] 
 
 fl. The demand on either 
 be a debt or a credit. [ 
 
 side must 
 
 [47] 
 
 II. The debt must be due or TI. It i 
 tilt credit exist bLlwecll tlie j 
 panics before the bankmpl-^ 
 
 II. The demand must be due to 
 the bankrupt and to the crtditor 
 ill their own rights respective- 
 ly. [47] 
 
 St exist bffire the bankmlMy. [52] 
 
 II. Modes of h 
 .II. By the general Statutes of Set-off. [58] 
 
 L cy.[52] 
 :ing the accounts. [56] 
 
 11. It must exist betwent the /tarries before 
 L the bankruptcy. [55] 
 
 \ll. In insolvency. [59]
 
 SET-OFF. 
 
 INTRODUCTORY CHx\PTER. 
 
 W HEN there are opposite demands between two persons, 
 and the accounts are connected by originating in the same trans- 
 action, or by any subsequent agreement, the balance is the 
 debt, and is the sum reco\'erable by suit. When the accounts 
 are unconnected by originating and by continuing in distinct 
 transactions, each demand is a legal debt, and recoverable by a 
 separate action ;(«) but such accounts may be balanced by set- 
 ting ofFoiic debt against the other, either at law or in equity. 
 
 (c) In Green v. Farmer, 1 Biackst. Rep. 651, 8 G. III. Lord Mansfield. 
 " The justice of allowing cross-demands is supported by natural equity : 
 the buhaice only is really due in such cases. But the common and establish- 
 ed forms of law have in i^eneral directed separate remedies to be mutually 
 liad by different actions : and tiiOUgh, where the nature of the transaction 
 consists in a variety of receipts and payments, tlie law allows the balance 
 only to be the debt ; yet, where the mutual debts stand unconnected with 
 each other, the laiv hath .mid, they slvall not be set-off: and courts of equity 
 have followed this rule, merely because it was the law." So in Burr. 2221, 
 Lord Mansfield says, tlie statutes of set-off seem to refer only to nnitual 
 unconnected debts : for at commtjn law, where the nature of the employment 
 necessarily constituted an account of receipts and payments, debts and cre- 
 dits, the balance only was the debt. 
 
 Dale V. Sollet, 4 Burr. Rep. 2133. A. D. 1767. Action for money had 
 and received — non-assumpsit : — issue. The defendant, a ship-broker, was 
 the plaintiff's agent in suing for and rccoverhig a sum of money for damages 
 done to the plaintiff's ship ; and did recover and receive 2000/. for tiie plain- 
 tiff's use, and paid him all but 40/. which he retained for his labour and 
 service therein, which the witness (Mr. fuller) swore lie thought to be a rea- 
 sonable allowance ; and tlie jury were of opinion, " that the defendant ou^lit 
 to retain 40/. as a reasonable allowance ;" consc(juentiy the plaintiff was not 
 entitled to recover. Tlie piainlifl" objected al tlie trial, " that liie (kfcndant 
 rouid not give n-ldrtice in this manner, of tiiis labour and service ; but oui^ht 
 '■o ha--" fiir(ide(f '■' bu tvmi of hvi.-»J}\ or at least have jjivcn nodct of it as a 
 
 B
 
 SET-Oir 
 
 The hiw relating to the balancing of unconnected dccounta is 
 called the law of set-otF. 
 
 set-off'." A verdict was found for the plaintiff, subject to the opinion of tlie 
 court ; and if the court should be of opinion against him, then judgment to 
 be entered as upon a nonsuit — Accoidingly Mr. Dunning moved, on behalf 
 of the defendant, " that judgment might be entered against tlie plaintifY, as 
 upon a nonsuit," and had a rule to shew cause. Lord Mansfield had no 
 doubt of the defendant's being at liberty to give this evidence. This is an 
 action for money had and received to the plaintiff's use. The plaintiff can 
 recover no more than he is in conscience and ecjuity entitled to, which can 
 be no more than -what rernaws after deduct'nii; all just allowances, which the 
 defendant has a right to retain out of the very .'mm demanded. This is not in 
 the nature of a crons demand or mutual debt : it is a charge which makes the 
 sum of money received for tlie pluintifi's use so much If-j.-. The two other 
 judges conciirred. Per curiam. Judgment for the defendant, as on a non- 
 suit. 
 
 Dobson, assignee of Patrick, v. Lockhart, 5 Ter. Rep. 135. A. D. 1793. 
 (Appendix 1.) ' Action for goods sold and delivered. General issue and set- 
 off, " That the defendant, before the bankruj^tcy, had executed two bonds as 
 surety for the plaintiff, on agreement (inter al.) that the defendant should re- 
 tain such money as should at any time be due from the defendant to the bank- 
 rupt, in respect of any dealings between them in trade, until the two first 
 bonds should be satisfied ; and that the defendant should, out of the money 
 which should be due from him to tlie bankrupt, retain and set-off so much 
 money as he should at any time pay on the two first bonds ; that, after the 
 bankruptcy, the defendant paid part of the money for which he was surety ; 
 that the money due from the defendant to the bankrupt was due on account of 
 dealings between them in the course of trade. Sec. Sec." Lord Kenyon non- 
 suited the plaintiff, with liberty to move to enter up a verdict for him, if the 
 court should be of opinion that he was entitled to recover. Upon a motion 
 for this purpose, 
 
 Lord Kenyon, The defendant had various transactions v/ith the bankrupt ; 
 amoi.g other's, he became surety for him in two several sums of money, and, 
 at tlie time of becoming such security, the latter engaged that the defendant 
 should not be called upon to pay for the goods, until he was indemnified 
 against those bonds. The agreement is valid and a good defence, under 
 the general issue, to this action. 
 
 Ashhurst, J. This case falls within the stat. 5 Geo. IL c. 30. § 28. 
 BuUer and Grose, Justices, of the same opinion with Lord Kenyon. 
 Sturdy v. Amaiid, 3 T. R. 599. A. D. 1790. (Appendix 4.) Action on 
 bond by the assignees of a bankrupt for securing the payment of an annuity 
 at ceitain times in the year : before the first instalment became due the obli- 
 gor lent to the obligee 200/. and, in order to secure tlie repayment, the obligor 
 was authorised, by an instrument under the hand of the obligee, to retain the 
 payments of the annuity from time to time, till the 200/. and interest \yas 
 paid. The obligee became a bankrupt before the 200/. was repaid. The 
 assignees brought debt on bond for the arrears. The obligor pleaded the 
 agreement. The plaintiff replied the bankruptcy of the obligee before either
 
 SEX-OFF. 
 
 This sumiTiary of the lawof set-ofifis divided into tv.o books; 
 tlie first is appropriated to " Set off at Law ;'''' the second con- 
 tains a few decisions upon " Set -off in Equity.'''' The first 
 
 of the quartcriy payments becanic due. Demun-er and joinder. The court 
 were clearly of opi'.iion that, v.itiiout any relation to the iaA\ of lien or set-off, 
 the demurrer was valid. Jud;<ment for defendants. 
 
 James V. Kymiier, 5 Ves. Juii. 108. x\, D. 1799. (Appendix 5.) In 1789, 
 Rice James aiid Richard Bcckford, partners, borrowed 19,000/. on their joint 
 and several bonds, and on the assit^nment of a mortgage. Of the money 
 borrowed 2,500/. was advanced by Mure 8c Co. 
 
 In May 1790, an agreement was entered into for the sale of James's inter- 
 est in the partnership to James Keighley, for 30,500/. payable by instalments. 
 A sum of money was deposited by Keighley, and the securities were to be 
 chan'j;ed. In October 1793, the IMures applying for payment of their bond, 
 Beckford said it was not then convenient; upon which they requested that 
 they might be accommodated with such sum of 2,500/. as a loan, to be re- 
 paid at a future period. Keighley offered to lend part of the money depo- 
 sited by him in puisuance of the agreement for the purchase of James's 
 share in the partnership, if James would consent. Robert Mure accordingly, 
 upon the 21st of October, wrote to James, stating their want of money — . 
 ti;e application to Beckford to relieve them — " by an application to Mr, 
 " Keighley to take up your debt to us secured upon ^\ illiam Beckford's 
 " estate, either wholly, or to accommodate us with the amount upon our en- 
 " gaging to repay it at a future period : this latter mode Beckford told me 
 " would be most agreeable to him ; and that he would mention it to Keighley." 
 
 The letter proceeded to state that Keighley had no other money disengaged 
 but what is lying at the banker's to be paid to James upon the signature of 
 the deeds ; but professes himself ready to acconmiodate them, provided 
 James will give his consent to his appropriating so much of the money to 
 that purpose. 
 
 Upon this letter James came to London, and received from Keighley 2,500/. 
 wJ^ich he immediately, upon the 24th of October 1793, delivered to the 
 Mures ; and he received from them a promissory note for that amount, 
 payable to him three months after date. Upon the 31st of December 1793, 
 the Mures became bankrupt. Since 1793 the interest upon the debt to the 
 Mures was puid uj) to 1797, by Beckford and Keighley, or by Keighley after 
 the death of Beckford. 
 
 The bill was hied by James, praying tliat it may be declared, that the sum 
 <jf 2,500/. paid by the plaintiff to the Mures, was a payment or part payment 
 of the debt then owing to tiiem from the pluintiiland Beckford ; or that the 
 plaintiff* is entitled to have such payment set olf against such debt ; that an 
 account may be taken, kc. 
 
 Lord Chancellor. Is there any doubt, that, where there are upon account 
 mutual credits between two parties, though they cannot set-off at law, yet it 
 is the common ground of a bill ? If James had brought an action against 
 Mure upon the note, supposing no bankruptcy had taken place, 1 si ould have 
 slopped that action while he was a debtor upon the bond. \\ her. there comes
 
 SET-Oi i- 
 
 book is subdivided into t\vo sections ; the first section relates 
 to" Set-off at Common Laiv ;'''' the second to" Set-off by 
 
 Statute.' 
 
 a case of bankruptcy, it is much stronger ; between solvent persons, there 
 might be a ground to say, indulgence was given, the credit extended, and 
 therefoi'e that credit ought to be continued. But the moment a bankruptcy- 
 comes the account is to be settled. They mighit sue Beckford's executors at 
 law, but I should stop the action. Therefore there is a clear mutual credit. 
 
 Lord Chancellor. I have not a particle of doubt upon this case, wliich is 
 the clearest I ever heard. 
 
 At the time of this transaction the Mures had not accepted Keighlcy, nor 
 given up the particular bond. The trimsaction of the change of the partner- 
 ship was not then a completed transaction. Under these circumstances 
 Keighley, going on with the purchase, had money applicable to the settle- 
 ment of that transaction, Avhen the business could be finished. The applica- 
 tion was made to James, that he would agree, that that money should go to 
 the relief of the Mures, creditors of the partnership. The mode in which 
 he does it is by taking this note. The transaction going on between Keighley 
 «ind him, I never would let him proceed upon that note. The fact is beyond 
 a doubt, that the partnership effects of Beckford and James have paid this 
 debt to the Mures. The decree must be according to the prayer of the bi'll.
 
 BOOK I. 
 
 SET-OFF AT LAW 
 
 SECTION L 
 
 SET-OFF AT COMMON LAW. 
 
 If one of two persons, between whom there have been mutual 
 dealings, for the purpose of arresting the other, sM'ear to the 
 sum due to him, ^\-ithout deducting the sum for M'hich he 
 knows himself to be indebted, it is an evasion : and, if not 
 ground enough to support an indictment for perjury, ^vill, 
 at least, entitle the defendant to an action for a malicious pro- 
 ecution.((^) 
 
 If different parties to different actions on policies of insu- 
 rance enter into the rule to consolidate, the interlocutory costs 
 of one action may, upon motion, be set-off against the interlo- 
 cutory costs of the other.(c) 
 
 {b) Tyd. K. B. 35. — In Barclay v. Hunt, 4 Burr. 1996. 7 Geo. III. which 
 Avas a question, whether the assignees of a bankrupt could hold to bail upon 
 an affidavit in these words — " as appears to these deponents, by the last ex- 
 ammation of the bankrupts, and as these deponents \erily believe." Lord 
 Mansfield, in delivering the opinion of the court, siiid to an observation of 
 Sir Fletcher Morton's, " that bills may have been paid aftei- the last exami- 
 nation." If that were really the fact, it would not save the person who 
 should swear in the evasive manner that this afiidavit would, in such case, 
 be expressed, either from losing the security of bail, or from criminal ob- 
 servation : he miglil surely be indicted for pei'jury, upon such an evasive 
 call), as it would upon that supposition be. In Dr. Turlington's case, he 
 swore to the sum due upon one side of the account only, without regarding; 
 the other side uf it ; but that was a mere evasion, and so treated. So in a 
 case from Plymouth, there was a like manner of swearing : and it was con- 
 sidered as a gross evasion ; for the balance is the point in question, and nei- 
 ther side of the account can be taken of itself without the other. 
 
 Barker v. Braham, 2 Blackst. 869. 3 Wils. 396, H.T. 13 G.III. (Appen- 
 dix 8.) — Blackbtone, J. says, the courts have been gradually extending this 
 equitable remedy. In the outset of a suit they compel the plaintiiV to make 
 a set-oflin the affidavit to hold to bail, and will not sufler him to swear to one 
 side only of the account. 
 
 (c) Nunez v. Modigliuni, 1 II. Blackst. 217. A. D. 1789. In I'.aster term 
 1788, the plidmifr brought several uclioiis ajjuiDbt tlic dcftudant, and liic other
 
 SET-OFF AT COMMON LAW 
 
 Opposite demands arising upon judgments may upon mo- 
 tion, (r/) be set-off against eaeh other,(6') wlienever such set 
 
 underwriters, on two policies of insurance ; the first effected m the year 
 1784, on a homeward-bound ship of the intestate's ; the second in 1785, on 
 the same ship, outward-bound. The same parties underwrote both the po- 
 licies. The actions on each being respectively consolidated, Aathan Modigliaiii 
 was made defendant in the former, and Hunnand Modigliani in the latter. — 
 When the first came on to be tried, on an application from the defendants' 
 attorney, it was put off to a future time, on his consenting to pay the plain- 
 tiff the costs of the day ; and an order of nisi prius for that purpose was 
 afterwards made a rule of court. The action on the second policy was to 
 have been tried at the sittings after Hilary term ; but the plaintiff withdrew 
 the record, and thereby became, though an administrator (Cont. 2 Comp. 
 Prac. 476) liable to pay the costs of the action. The costs of the first action 
 having been taxed, and allowed to the plaintiff— A rule was granted to shevir 
 cause why the prothonotary should not review liis taxation, and why the 
 costs, which should be taxed and allowed to the defendant in the second ac- 
 tion, should not be set-off against those taxed and allowed to the plaintiff in 
 the first. The court said it was consistent with justice to allow the set-off, 
 as the defendant JVathan Modigliani was a party to both actions ; in one, be- 
 ing made defendant on the record ; in the other, being within the rule to 
 consolidate. — Rule absolute. 
 
 ((•/) Previous to the year 1791, it seems to have been siipposed, that this 
 rigiit to set-off judgments depended upon the statutes of set-off. In Nunez 
 v.'Modigliani, 1 H. Bl. 217. A. D. 1789. Bond and Le Blanc, Serjeants, 
 urged, that the costs in one action could not be set-off against those in ano- 
 thar, where there were different defendants. If the defendant had been the 
 same in both, it would alter the case ; but costs due frorn A. to B. shall not 
 be set-off against those due from A. to C. This would not be authorised by 
 the statutes of set-oft' : and the court will not interfere and create a set-off, 
 which those statutes do not allow. There is the same species of argument 
 in O'Connor v. Murphv, 1 H. Bl. 1791. A. D. 1791 ; but in Mitchell v. Old- 
 field, 4 Term Rep. 123. A. D. 1791, (Appendix 13) Bearcroft observing, 
 that tliis was not such a debt as could be set-off under the statute, Lord Ken- 
 3on, C. J., said, that this did not depend on the statutes of set-off, but on the 
 general jurisdiction of the court over the suitors in it : that it was an equita- 
 ble part of their jurisdiction, and had been frequently exercised. 
 
 (e) This equitable practice seems not to have been permitted before 24 
 Geo, II. In H. T. 4 Geo. II. in K. B. Butler v. Innys Sc Ux. 2 Str. 891.— 
 The plaintiff sued, as a pauper, and was nonsuited ; after which he brought 
 a second action and recovered ; and Strange moved on behalf of the defen- 
 dants, that the costs in the first action might be deducted out of the recovery 
 in the second; but it was refused. In E. T. 12 Geo. II. in C. B. Ford v. 
 Miles et e contra, stated in Clenlow and Lowe, Barnes 130. The court of 
 Common Pleas denied to set costs against costs. In T. T. 16 Geo. II. m C. 
 B. Goodtitle on demise of Clenlow and Wife v. Lowe and Lowe, and Lowe v. 
 Lowe (q. if not Clenlow) in case 2 Barnes 130. Rule obtained on the motion 
 of Clenlow, upon affidavit of Lowe's insolvency, to shew cause why the costs
 
 SET-OFF AT COMMON LAW. 
 
 off is equitable, (y) though the judgments are in different courts, 
 (g) and though the parties to the different records are not the 
 saiTic.(/() 
 
 recovered by Clenlow in one of these actions should not be set off against the 
 costs recovered by Lowe in the other action. Ware, attorney for Lowe, 
 shewed for cause that the parties in the two causes were different ; and that, 
 by this means, Clenlow, who was in good circumstances, would be discharged, 
 and Ware would have no remedy for his costs, Lowe being insolvent. The 
 rule was discharged : (and it is to be noted that in this court the attorney's 
 lien is only subject to the equitable claihis of the parties ; post, note t) so that 
 upon that supposition this decision must have been upon the groiuid either 
 that the paities Avere diiVerent, or that costs were never set off against costs. 
 In H. T. 17 G. n. in K. B. Duthy v. Tito & al. Tito v. Duthy, sfrange 1203. 
 In both causes the verdict was for the defendants : and now Tito, one of the 
 defendants in the first cause, moved that the costs he was to pay to Duthy in 
 the second cause might be set agahist the costs Duthy was to pay in the first. 
 Sed, per curiam, it cannot be done : there was forced to be an act of parlia- 
 ment in the case of nmtual debts : besides, how can we prefer Tito, who is 
 but one defendant out of five, when the plaintiff in that action may pay the 
 costs to either of the others ? In 23 Geo. II. in C. B. IVIordecai v. Nuting, et 
 al. Bull. Ni. Pri. 336. In an action of trespass against four, three were ac- 
 quitted, and motion, on their behalf, that their costs might be deducted out of 
 what the fourth defendant was to pay, upon an affidavit, that the plaintiff was 
 a travelling Jew — denied. The same decision is reported in Barnes 145. 
 saying that the court declared the motion to be unprecedented. 
 
 Since 33 Geo. II. all the cases, except that of Powel v. Smith, et e contra. 
 T. 25 Geo. II. Bull. Ni. Pri. 336. uniformly allow demands arising upon 
 opposite judgments to be set off against each other. The following arc the 
 cases : Wills v. Crabb, E. 24 Geo. II. Bull. Ni. Pri. 336. A plaintiff being 
 nonsuited, the defendant took out a fi. fa. and levied part of the costs, and, at 
 the same time, took out a ca. sa. for the rest, and took the plaintiff in execu- 
 tion ; w hich being irregular, the court set it aside with costs : the defendant 
 moved that tiie proceedings against him on account of these costs should be 
 stayed, upon his entering up satisfaition upon the judgment obtained by him 
 lor the sum at which the costs for the irregularity were taxed, and upon 
 shewing cause the rule was absolute. Powel v. Smith, et e contra, T. T. 25 
 Geo. II. Bull. N. P. 33G. In cross actions of assault, each party being non- 
 suited, S. had his costs taxed at y/. ICv. and P. his at 13/. lOv. whereupon he 
 moved lobe at lilierty to deduct the 9/. lO.v. out of the 13/. lO.s. paid by him 
 unto tiie sheriffs : rule to shew cause, but the defendant not consenting, the 
 court said tiiey could not do it. In Scoffin v. Robinson, in trespass, E. T. 
 26 Geo. II. C. B. tiled 2 Blackst. 826. plaintiff, at the last assizes for Kent, 
 recovered a verdict against defendant ; and, at the same assizes, in an eject- 
 ment on the demise of Hobinson (defendant in this action) plaintiff re(0\trcd 
 a verdict. Kobinson applied to have the costs he was entitled to diductedoui 
 of the costs to be allowed Scoffin. Rule for that purpose made absolute. 
 Thrustout,on demise of Biirnes v. C rafter, 2 Blackst. 826. T. T. 12 Geo III
 
 SET-OIF AT COMMON LAW 
 
 Costs may be set-ofF against costs only, or against debt and 
 costs.(i) 
 
 Barnes the lessor of the pkiintiff had a judgment last Michaelmas term, for 
 40/. 5*. against the defendant for his debt and costs on an action for the use 
 and occupation of the premises, but was nonsuited in the present cause, the 
 costs of vvliicii arc taxed at 12/. 5s. for non-payment of which, an attachment 
 is taken out against the plaintiff". The demands arising upon each juci.gment 
 Avere set-off' against each other. The court said that the \w'mi had been settled 
 hy the cases whicJi had been cited by the counsel, viz. Terlo v. Lowe. 16 
 Geo. II. 1 Barn. 102, (I cannocfind this case) Scoffinv. Robinson, Roberts v. 
 Biggs, Roberts v. Mackroul, T. T. 9 Geo. III. This doctrine is now finally 
 settled. Vide the following notes. 
 
 (/) Glaister v. Hewer, 8 T. R. 69. 39 Geo. III. (Appendix 9) It is stated 
 by the counsel, and acceded to by the court, tliat applications of this nature 
 are to the equitable jurisdiction of the couit ; and that, in attending to them, 
 they will be guided by the rule adopted in a court of equity, that he who asks 
 equity must do equity. Vide O'Connor v. Murphy^ 1 H. Bl. «359. A. D. 
 1791. (App. 10) where the court proceeded solely on equitable principles. 
 
 (5-) Barker administratrix v. Braham, 2 Blackst. 896. 3 V/ils. 396. 13 
 Geo. III. (Ap. 8) The sum of 102/. 18.s. \d. was due from the plaintiff" as 
 administratiix of her husband, on a judgment recovered in the King's Bench, 
 in Hih Ter. 1 769. The plaintiff in the same right as administratrix, brought 
 this action in the Common Pleas against the defendant, for a debt due to the 
 intestate, and had a verdict for 106/. 96-. 6d. last T. T. On motion that these 
 judgments might be set-off" against each other : De Grey, C. J. No mischief 
 can follow from allowing it : no devastavit can happen, unless the plaintiff 
 knows of any superior debt ; and, if slie know it, slie might disclose it, and 
 shew it for cause. The same answer may be given to the strange supposi- 
 tion of the debts being satisfied by executing a void ca. sa. for which Barker 
 had been amply repaid in damages. If it had been so determined, she might 
 have shewn that for cause : I am therefore for allowing the present motion, 
 but desire it may be remembered, that tl.is is the case of one judgment against 
 another, both in the same right : and must be distinguished from setting off" 
 private debts, not in suit, and upon wiiich no judi,ment has been obtained. — 
 The other judges of the same opinion. 
 
 Hall v, Ody, 2 P. and B. 28. A. D. 1799. (Ap. 12) Cockell Serj. this day 
 shewed cause against a rule nisi for setting-off" the costs of an action of eject- 
 ment recovered in the K. B. by the defendant against the phintiff", against 
 the costs of an action of trespass in this court, in wliich the plaintiff had 
 recovered a verdict ; and insisted that in all the cases where a set-off" of this 
 kind had been allowed, both actions had been in tlie same court. But the 
 court overruled the objection, saying that a set-off had even been allowed 
 between costs in a court of equity, and costs in a court of law. And Heath, 
 J. observed, that he remembered a case where an ejectment having been 
 brought in the K. B. and afterwards a formedon in this court, proceedings 
 were stayed in the latter until the costs of the former were paid. 
 
 {h) Previous to 27 Geo. II. this practice seems not to have been permitted. 
 In Duthv V. Tito et al. and Tito v. Duthv, Str. 1203. H. T. 17 Geo. II.
 
 SET-OFF At COMMON LAW. 
 
 1 he judgments may be after verdict, or upon a nonsuit, or 
 by default.(/(-) 
 
 (ante, note r) the defendant Tito moved to have the judgments set*off as^ainst 
 each oilier ; but per curiam, how can we prefer Tito, who is but one defend- 
 ant out of five, when the puiintiff inthat action may pay costs to either of the 
 others, and in Goodtitle on demise Clenlow et Ux. v. Lowe and Lowe, and 
 Lowe V. Lowe (q. Clenlow) in case T. T. 16 Geo. IL 2 Barnes 130, (ante, 
 note e) the court of C. B. would not permit the opposite judgments to be set- 
 off against each other, the parties in the two causes being different, and 
 Lowe's injiolvency defeating the attorney's lien for his costs : the modern 
 practice in the C. B. (post, note r) being to allow the attorney's lien only to 
 extend to the balance between the parties : tius decision, il the practice were 
 then in existence, must have been founded solely on the ground that the 
 parties v/ere different. Roberts v. Biggs, 27 and 28 Geo. IL Barnes 146. 
 and Bull. Nisi Pr. 336. where Robeits had brought an action against Biggs 
 and others, and Biggs had brought a cross action against Robeits, the court 
 ofC. B. ordered that upon Biggs's acknowledging satisfaction on the record, 
 in the cause in which he was plaintiff, the pluintifl' in the other cause in which 
 he (Biggs) and ot'aers were defendants should be restrained from taking out 
 execution. And in INIitchcll v, Oldfield, 4 Ter. Rep. 123. A. D. 1791. 
 (Appendix 13) The plaintiff recovered a judgment against the defendant for 
 
 182/. lOv. but the defendant having also recovered in another action against 
 this plaintiff and anoti.er, obtained a rule to shew cause why the debt and 
 costs in the latter should not be set-off agiunst the judgment in the former 
 action ; suggesting among other reasons, that Mitchell had absconded.—. 
 Bearcroft (shewing cause on behalf of Mitchell's attorney in the first action) 
 hinted that perhaps the court would not interfere at all : inasmuch as one 
 debt was due to the plaintiff alone, whereas the other was the jouit debt of the 
 plaintiff and another to the defendant ; and he observed that this was not 
 such a debt as could be set-off, under the statute. Lord Kcnyon, Ch. J. said 
 that this did not depend on the statutes of set-off, but on the general juris- 
 diction of the court over the suitors in it : that it was an equitable part of 
 iheir jvuisdiction, and had I)een frecpiently exercised. Rule absolute, on the 
 defendant's allowing the lien, and on his entering a remittitur in the cause iii 
 which he was plaintiff. Vide Nunez v. Modigliani, 1 IL Bl. 217. ante, 
 note c. 
 
 (/) Thrustout v. Crafler, 2 Blackst. 826. 12 Geo. III. (Appendix 7.) lo 
 a rule oljlained to shew cause why costs \n ejectment should not be set-off 
 against debt and costs in an action for use unci occupation : it was slated by 
 coun.sei, that there was a dilTerence in the nature of exccutii<ns : one being 
 for debt as well as costs, foi' wl.ich an action would lie on the judgment, the 
 other for costs only, to be recovered by contempt. But tiie court made the 
 rule absolute. 
 
 (/t) U/ion a nonsuit Thrustout v. Crafter, 2 Blackst. 826. 12 Geo. III. 
 (Appendix 7.) O'Connor v. Murphy, 1 IL Bl. 656. A. D. 179 L (Ajjpendix 
 
 10.) by dffauU Glaistcr v. Hewer, 8 T. R. 69. 29 Geo. HI. (Appendix 9.) 
 
 c
 
 10 SET-Oir AT COMMON LAW. 
 
 Though the judgment on one side existed at the commence- 
 ment of the action, and might have been pleaded, it may be 
 set-off. (/) 
 
 When there arc opposite demands arising upon judgments, 
 and the party on one record is indebted to the other party, on a 
 consideration distinct from the judgment, it seems that the 
 court will not permit such debtor to set-off his demand arising 
 upon the judgment without taking the other debt into account ; 
 but the court v/ill not prevent judgments being set-off against 
 each Other when there are many parties to one of the actions, 
 because one of these persons does not take into the account 
 a separate debt due from him to tlie party on the other re- 
 cord. (;;/) 
 
 In an action against several defendants, of wliom some are 
 entitled to recei\-e, and the others are liable to pay costs ; the 
 defendants cannot balance their respective costs, and pay the 
 difference to the plaintiff upon the suspicion of hisinsolvcney ;(/?) 
 but the court will permit the plaintiff to set-off the costs which 
 
 (0 Barker v. Brahara, 2 BL 869. 3 Wils. 396. A. D. 1746. (Appendix 
 8.) There being clue to the defendant 102/. 18.?. Id. from the phiintiff, on a 
 judg-ment recovered in the K. B. in H. T. 1769, the plaintiff" brought an 
 action against the defendant in the C. P. and had a A^erdict for 106/. 9.?. 6d. 
 last T. T. The defendant moved to have these judgments set-off, which 
 (without taking notice that ih:; judgment might have been pleaded) was 
 alllowed. 
 
 (?/2) Glaister v. Hewer and A. and B. "j 8 Term Rep. 69. 39 Geo. III. 
 et I (App. 9.) 
 
 Hewer and A. and B. v. GUd'ster. J Gibbs and Park shev^^ed cause 
 against a rule, obtained by Hewer, and the two other defendants A. and B. 
 for setting-off these judgments against each other : they contended that the 
 defendants v/ere not entitled to set-oft" their judgment against that which the 
 plaintiff recovered against them, because the plaintiff" had another demand 
 against Hewer, saying that this was an application to the equitable jurisdic- 
 tion of the covu't, who would therefore be guided by the rule that is adopted 
 in a court of equity, that he who asks equity must do e([uity : the court 
 thought that this v/ould be carrying the rule too far ; for that the effect of 
 discharging this rule would be to subject the two other defendants to the pay- 
 ment of a separate debt of Hewer. — Rule absolute. 
 
 (n) Mordecai v. Nuting and al. B. N. P. 326. 23 Geo. H. in C. B. In an 
 action of trespass against four, three were acquitted, and motion, on their 
 behalf, that their costs might be deducted out of what the fourth defendant 
 was to pay, upon an -affidavit that the plaintiff" Avas a travelling Jew — denied : 
 the same decision is reported in Barnes 143, saying that the court declared 
 fhe motion to be unprecedented.
 
 SET-OFF AT COMMON LAW. 11 
 
 he is to pay, ajj;-ainst the costs wb.ich he is to receive, \a hen the 
 defendiint, to whom he is to pa}-, is the principal party to the 
 suit, and has undertaken to pay costs and damag-es.(o) 
 
 One of se\eral defjndants, against whom a judgment has 
 ha5 been recovered, may, upon suspicion of the plaintiff's in- 
 solvency, set-off a demand arising upon a separate judgment, 
 which he has obtained iigainst tlie plaintiff, though the plaintiff* 
 has offered not to take out execution against such defendant, 
 because he is not the principal party to the suit.(/>) 
 
 A person who is equitably entitled to a judgment, may set- 
 off such judgment, though his name is not upon the record.(^) 
 
 (o) Schoole V. Noble and two others, viz. S. & B. 1 II. Bl. 23, (App. 11.) 
 The pIuintift"brought trespass at^amst tlie defendants for breaking and enterinp,- 
 his house, Sec. Defendants S. and B. had suffered judgment to go by 
 default : Noble went on to trial, and obtained a verdict. Damages Avere 
 assessed against S. and B. at one half-penny each ; on which Runnington, 
 Sergeant, obtained a rule to shew cause why the costs v/hich might be taxed 
 against S. and B. on the judgment by default, and the damages assessed, 
 siiould not be deducted out of the costs taxed to Noble on the postea, and 
 allowed to the plaintiff, and, in the mean time, execution against them stayed. 
 This was moved on an affidavit, stating that the defendants S. and B. had 
 acted under the authority of Noble, v/ho had undertaken to pay the damapfc^ 
 and costs. — Rule absolute. 
 
 (/O Dennie v. Elliot,^Hill and others, 2 H. BI. 587. A. D. 1795. (App. 12.) 
 Dennie obtained judgment against the present defendants ; Hill obtained vi 
 rule to set off a judgment v.hich he had obtained iigainst Dennie, on an afii- 
 davit that Dennie appeared to be insolvent, that his goods were all distrained 
 for rent, and that he v,as not to be met with. This was opposed on an aili- 
 davit of Dcnnie's, stating that Hill had told him that Elliott, one of the other 
 defendants, vras to indemnify Hill, as having acted under his orders, and that 
 the plaijitiff had offered not to take out e.^fecution against Hill. But the rule 
 was made absolute. 
 
 (y) O'Connor v. Murphy, 1 H. Bl. 659. A. D. 1791. (App. 10.) There 
 were two causes, (Murphy v. O'Loughlin, and O'Connor v. Murphy) and 
 nonsuits in each. The first was an action of trover for a ship, wiiich was 
 the property of O'Connor and one O'Sullivan (who were partners in trade,) 
 and of which O'Loughlin was master. The second action was by the indor- 
 see against the maker of a promissory note. yV nioiion to set-off arising upon 
 these judgments, was made on the giound that the action against O'Lough- 
 lin was defended at the joint expense of O'Connor and O'Sullivan, and that 
 O'Sullivan was interested, together with O'Connor, in the promissory note, 
 on which the present action was brought. Lord Lou;i,hboiough eaid that, 
 \ntliout any regard to O'Sullivan's interest in the promissory note, O'Clonnor 
 v.as erpiitably entit led UUhe costs of thenoJisuil in the action of trover against 
 O'Loiighli.M ; and therefore he ought to be pcrniitled to set them off, as f?i' 
 as they would goagainst the costs in the present action. — Rule alisoluto
 
 12 SET-OFl AT COMMON^ LAV/ 
 
 It is ihe settled practice of tiic Court of Kiiig'b Eeiicli,(/') 
 that the attorney's lien upon the judgment of his client shall, 
 
 (r) Cases in K. B— Muchell v. Oldfidd, 4 T. R. 123. A. D. 1791. (App. 
 13.) Mitchell had absconded ; upon an application by Oldfieidto set-off oppo- 
 site judt^ments, Bcurcroft shewed cause on behalf of Milchell's attorney, 
 contending, as he was not concerned as attorney in llie other action, he had a 
 lien for his costs on the judgment obtained by his client. 
 
 Lord Kenyon thought it right tliat the attorney in this case should be sat- 
 isfied his costs before the defendant was allowed to make the set-off. 
 
 Duller, J. Though this court have said that they will not interfere on the 
 bchaifofthe attorney, and prevent t!ie plaintiff's settling his own cause with- 
 out fust paying the attorney's bill ; yet, when the adverse party, against 
 waom a judgment has been obt.dned, applies to get^ rid of that judgment, 
 the court will take care that the attorney's bill is satisfied.- 
 
 Rule absolute, on tiie defendant's undertaking, inter alia, to pay the allor- 
 
 ncy'sbill. 
 
 Randle v. Fuller, 6T.R. 456. A.D. 1793. (Appendix 14.) A rule obtain- 
 ed by the defendant to shew cause why a judgment obtained by ium against 
 the plaintiff should not be set-off against a judgment obtained by the plaintiff 
 in this action, was opposed liy the plaintiff's attorney, claiming a lien upon 
 the judgment obtained by his client ; and stating tb.at the plaintiff Irad ab- 
 scoiided, and that he had no other security for his bill than the judgment. 
 
 The court, understanding that, by the practice in the C. P. the attorney's 
 lien only extended to the defendant's residue upon balancing the accounts, 
 desired the matter to stand over — .md, after deli'oeration, 
 
 Lord Kenyon, C.J. said, " It has been expressly determined in Mitchell v. 
 Oldfield, that the attorney had a general lien on the costs and damages re- 
 covered, without any such restriction as was now endeavoured to be put upon 
 it : and that, upon the reason and justice of the case, he could find no reason 
 to impose such a restriction. That, whatever might be the practice in the 
 court of C. P. he was glad to find that his opinion was warr^aited by tl^ie settled 
 practice of this court. 
 
 Tae law on this head is conaidered as settled in Glaister v. Hewet, 8 T. 
 R. 69. 3 Geo. HI. (Appendix 9.) 
 
 Morland and Ilarp.mersley v. Lashley ; Same v. Lashley and Ux, B. R. 
 A. D. 1795. innotes, 2 H. Bl. 441. Both these causes were tried atthe sit- 
 tings Trin. 34 Geo. III. The first was an action upon the separate bond of 
 the defendant : the second upon the joint bond of the defendant and his wife. 
 In the first, the plaintifi" obtained a verdict, and in the second was nonsuited. 
 In the same term Henderson on the part of the plaintiff obtained a rule to 
 shew cause, why the costs of the nonsuit should not be deducted from the 
 sum given by the verdict in the first cause. 
 
 Palmer shewed cause contending on the authority of Mitchell v. Oldfield, 
 4 T. R. B. R. 123. that the attorney for the defendants had a lien on the 
 judgment for his costs. In support of the rule Henderson cited Barker v. 
 Braaam, 3 VVils. 396. and attempted to distinguish the present case from 
 Mitcneli V. Oldfield, because there were different attornies in the different. 
 causes in tuatcase, but here the attorney was the same in both. But
 
 SET-OFF AT COMMON LAW. 
 
 upon his rippliciitJon,(A-) be first satisfied, before the opposite: 
 piirty is permitted to set-clf any judgment v.hich he has ob- 
 tained, \vhether there are the same or different attornies in the 
 
 Lord Ktiivon slicI liiat circumstance made no difierence between the cases, 
 and, as toiiie case in ^^'ilson, it did not there appear that any application was 
 made on the part of the attorney. That an attorney hud a lien on the judg- 
 ment lor his costs Avhich it would be unjust in the court to take from luni. 
 Tl\e rule, th.erefore, was made absolute, with a reservation of the attorney's 
 lien. But as his costs were ecjual to the costs of the nonsuit, the rule was 
 afterwards abandon.ed. 
 
 The followinf^ are cases in C. P. 
 
 Roberts v. Figgs, 28 Geo. II. 2 Barnes. Suppl. 12. cited bv counsel 
 in Thrustout v. Crafter, C. P. 2 Blackst. 826. T. T. 12 Geo. III.' A rule 
 to shew cause why 1 3 guineas costs taxed against the plaintiff in a former 
 cause, should not be set-off against 16 guineas costs recovered against the 
 defendant in this cause : it was shewn for cause that the plaintiff \vas insol- 
 vent : and that liis attorney had a lien upon these costs for lusbill : but it was 
 held by \\'ilmot, C. J. et cur. that the attorney's lien was only upon what 
 the plaintiff was entitled to have, viz. the difference. 
 
 Thruslout v. Crafter, 12 Geo III. 2 Blackst. 826. (App. 7.) 
 
 Schoole v. Noble and others, 1 H. Bl. 23. A. D. 1788. Application to 
 set-off judgments. 
 
 The court held that the attoniey can only have such a lien on the costs, as 
 is subject to th.e equitable claims of the parties in the cause. 
 
 Nunez v. Modigliani, 1 H. Bl. 217. A. D. 1789. (a;itc. note c.) An ap- 
 plication to set-off costs, 
 
 Lawrence, Serjeant, was stopped by the court, wlio said that it liad been 
 decided in the case of Schoole v. Noble and others, in this court, ti:at an 
 attoniey had only such a lien on the costs, as were subject to the equitable 
 claims of the parties in the cause. 
 
 Vaughanv. Davies, 2. II. Bl. 440. A. D. 1795. (App. 11.) This was an 
 application by the deferidant to set-off judgments. 
 
 Adair, Serjeant, shewed cause, on the part of live attorney for the plain- 
 tiff, on affidavits, stating that he had no fund to resort to but the sum reco- 
 vered by the plaintiff for the payment of his bill, the plahitiff himself being 
 insolvent: tlie set-off therefore ought not to be allowed, till the attorney's 
 bill was satisfied. He said that the coiut would protect an attorney who was 
 their ofi'icer, who would otherwise be Mithout remedy ; and that in the court 
 of King's Bench the equitable right of setting-off the sum recovered in one 
 action against that recovered in another, was always suljjei I to the alloiniy's 
 lien for his bill ; for which he cited Mitchell v. Oldfield, 4 T. R. B. R. 123. 
 and Morland V. Lashley, B. R. 'I'rin. 34 Cieo. III. Ilwi 
 
 On this day, after consideration, the court said that the attorney's lien did 
 not extend to prevent the parties in the cause from having the bmelit of 
 tile set-off, wnicii was applied for in this case, and therefore ma(k' the rule 
 absolute. 
 
 Buller, J. mentione<l that a similar decision had taken place this Icfui in 
 the Court olCliancery, in a case of Burton y. LUicrbij^ton.
 
 14 SET-OFF AT COMMON LAW. 
 
 difterent cliiiscs.(/') In the Court of Common Pleas the attor- 
 jiey's lien extends only to the difference upon balancing the 
 judgments ; but this practice seems not te be finally settled. (z^) 
 
 Denic v. EUioit, Hill ami others, 2 H. Bl. 589. A. D. 179j. (App. 12.) 
 In this case a rule was t^ranted to shew cause why a juch^ment obtamed 
 by the defendant should not be set-off against the plaintiff's judgment in 
 this cause. 
 
 In opposition to the rule Le Blanc, Serjeant. The attorney for the plain- 
 tiff made an affidavit that he had no security for his costs, which the plaintiff 
 was unable to pay, and Avhich he verily believed he should lose, if the set- 
 off vv'ere allowed, as he had no chance of recovering them, but out of the 
 damages and costs to be received under the judgment for the plaintiff. 
 
 Le Blanc also relied on the practice of the court of King's Bench, and 
 riled Mitchell v. Oldfield, 4 T. R. B. R. 123. and Randle v. Fuller, 6 T. R. 
 B. R. 456. 
 
 In support of the rule. Bond, Serjeant, insisted on the known practice in 
 lliis court, that the attorney's lien for his costs was subject to the equitable 
 claims of the parties in the cause, which, he said, was settled in the cases of 
 Schoole V. Noble, ante vol. i. 23. Nunez v. Modigliani 217. O'Connor v. 
 Murphy 659. and Vaughan v. Davies, vol. ii. 440. 
 
 The court held the practice here to be clearly established by these cases, 
 whatever might be the rule in the King's Bench ; and therefore that it was 
 not now to be disputed. — -Rule absolute. 
 
 Hallv. Ody, 2 P. and B. 28. A. D. 1799. (App. 12.) A rule was obtain- 
 ed by the defendant for setting-off judgments. 
 
 Cockell, Serjeant, stated, that he oppo-icid the rula on the pail of tlie 
 plaintift''s attorney, who had not been paid his costs, and represented that the 
 plaintiff himself was now in prison. He cited Mitchell v. Oldfield, 4 T. R. 
 123. to sliew that the attorney has a lieu on the judgment for the amount of 
 his costs. 
 
 Shepherd contra relied on Denie v. Elliot : when it v/as held, that whate- 
 Ter might be the rule in the King's Bench, yet according to the practice of 
 this court, the lien of the attorney was subject to the equitable claims of 
 two parties. 
 
 Lord Eldon, C. .T, Finding it to be the practice of this court, that an at- 
 torney shall not take his costs out of the furid, v/hich by his diligence he has 
 recovered for his client, where the opposite party is entitled to a set-off, it 
 does not become me to say more than that I find it to be the setLied practice 
 with much surprise, since it stands iii direct contradiction to the practice of 
 every other court as well as to the principles of justice. In the Court of 
 Chancery the same parties are often concerned in many suits, and I never 
 knew the idea entertained of arranging tlie funds till the respective attornies 
 were paid their costs. liov/ever, as the attorney in this case has acted Avith 
 a knowledge of the settled practice of the court, he can have no right to 
 claim the advantage of a more just principle : aiid it will only remain for the 
 court to consider, whether the practice of the Court of King's Bench should 
 not be adopted here for the future. 
 
 Heath, J . I have no objection to have the practice reconsidered.
 
 SECTION 11. 
 
 OF SETOFF BY STATUTE. 
 
 Set-off bij Statute relates \st, to Set-off hi General; and, 2cl, 
 to Set-off in the particular Lases oj Bankmpts, a?id of Insol- 
 vent Debtors. 
 
 CHAPTER I. 
 OF SET-OFF BY STATUTE IN GENERAL. 
 
 W HEN there are mutual debts betAveen the phiintiff and the 
 defendant at the time of the eommeneement of the action ; 
 or if either party sue or be sued as executor or administrator, 
 where there are mutual debts between the testator and intes- 
 tate, and the other party ; one debt may be set against the other, 
 either by beinggiven in evidence upon the general issue, or 
 by being pleaded in bar ; except where either of the debts ac- 
 crues by reason of a penalty contained in a specialty ; when 
 the debt intended to be set-off must he pleaded hi bar, and the 
 plea must state how much is truly and justly due on either side; 
 but, in all cases where the general issue only is pleaded, notice 
 must be given, at the time of pleading, of the particular sum 
 or debt intended to be set-off, and upon what account it became 
 due : and, if the plaintiff recover in any suit or action where a 
 set-off is given in evidence, judgment must be entered for no 
 
 Rookc, J. There can I)c no objection to rcconsiderini; tlie pracUce, but it 
 docs not appear to me to be unfair as it stands at present. The attorney looks 
 in the first instance to the personal security of his client, and if beyond that 
 he can get any further security in liis hantls, it is a nitre casual advantage. 
 Uule absolute. 
 
 (*) Vide Morland v. Lasliley, note r. 
 
 (0 ^'ide note r Morlaiid v. Lasliley. 
 
 ^u) Vide note r.
 
 « 
 
 16 SET-OFF BY STATUTE 
 
 more than appears to be clue to him on the balance of ac- 
 counts. (r) 
 
 {v) 2 Geo. II. ch. 22. sect. 13. And be it further enacted by the authority 
 aforesaid, That where there are mutual debts between the plaintiff" and de- 
 fendant, or if eitl.er party sue or be sued as executor or administrator, where 
 there am mutual debts between the testator or intestate, and either party, 
 one debt may be set against the other ; and such matter may be given in evi- 
 dence upon the general issue, or pleaded in bar, as the natui'e of the case 
 shall require, so as at the time of his pleading the general issue, Avhere any 
 svich debt of the plaintiff, his executor or intestate is intended to be insisted 
 on in evidence, notice shall be given of the particular sum or debt so intend- 
 ed to be insisted on, and upon what account it became due, or otherwise such 
 matter shall not be allowed in evidence upon such general issue. — 8 Geo. II. 
 ch. 24. sect. 4. And whereas the provision for setting mutual debts one 
 ag:unst the other, is highly just and reasonable at all times, be it therefore 
 enacted by the authority aforesaid. That the said clause in the said first re- 
 vited act, 2 Geo. II. ch. 22. ' for setting mutual debts one against the other, 
 hhall be and remain in full force for ever.' Sect. 5. And be it further enact- 
 ed and declared by the authority aforesaid. That by virtue of the said clause 
 in the said recited act contained, and hereby made perpetual, mutual debts 
 may be set against each other, either by being pleaded in bar, or given in 
 evidence under the general issue, in the manner therein mentioned notwith- 
 standing that such debts are deemed in law to be of a different nature, unless 
 in cases where either of the said debts shall accrue by reason of a penalty con- 
 tained in any bond or specialty : and in all cases where either the debt, for 
 which the action hath been or shall be brought ; or the debt intended to be 
 set against the same, hath accrued or shall accrue by reason of any such pe- 
 nalty, the debt intended to be set-off', shall be pleaded in bar, in which shall 
 be shewn how much is truly and justly due on either side ; and in case the 
 plaintiff' shall recover in any such action or suit, judgment shall be entered 
 for no more than shall appear to be truly and justly due to the plaintiff", after 
 one debt being set against the other as aforesaid. 
 
 O/imions upon the statutes considered together — 1. The pi'ovision for setting 
 mutual debts one against the other is highly just and reasonable at all times. 
 
 S Geo. IL ch. 24. sect. 4. 2. At common law, before these acts, if the 
 
 plaintiff" v/ere as much or even more indebted to the defendant, than the de- 
 fendant was indebted to him, yet the defendant had no method to strike a 
 balance : he could only go into a court of ecjuity, for doing w hat is most 
 clearly just and right to be done. The statutes of set-off' were made to re- 
 medy this defect. Lord Mansfield, Burr. 1230. — 3. The meaning of these 
 acts of parliament was, that in all cases of mutual debts, the less sum sliould 
 be deducted out of the greater, if the defendant desire it. Burr. 1230. — 4. 
 The statutes only say, that the defendant may set-off" the debt due to ..im 
 from the plaintiff", but do not compel him to do so. Burr. 823. — 5. Where 
 there are mutual debts unconnected, the law said they should not be set-off", 
 but each must sue : and courts of equity followed the same rule, because it 
 was the law ; for, had they done otherwise, they would have stopped the 
 course of law, in all cases where there v/as a mutual demand. The natural
 
 IN GENERAL. 17 
 
 This subject is divisible into four parts. (Tf-) 
 
 1. The requisites to enable a person.to give a set-off in evi- 
 dence. 
 
 2. Of a person's option to waive or to avail himself of his 
 right to set-off. 
 
 3. Of the pleadings and of the mode of setting-off debts. 
 
 4. The judgment. 
 
 SECTION. I. 
 
 TJic requisites to enable a person to give aset-ojf in evidence. 
 These requisites are tvvo. — 1. There must be mutual debts. 
 — 2. The debts must be due at the commencement of the ac- 
 Tion. 
 
 sense of mankind was first shocked at this, in the case of bankinjpts, and 
 it was provided for by 4 Ann. ch. 17. sect. 11. and 5 Geo. II. ch. 30. s. 
 28.— Where there was no bankruptcy, the injustice of such sttting-ofl" (espe- 
 cially after the death of either party) was so ijlaring, that parliament inter- 
 posed by 2 Geo. II. cb.. 22. and 8 Geo. II. ch. 24. But the provision does 
 not yo to goods, or otlier specific things wrongfully detained : and therefore 
 neither courts of law nor equity can make the plaintiff, who sues for such 
 goods, pay first what is due to the defendant, except so far as the goods can 
 be construed a pledge ; and then, the right of the plaintiff is only to redeem. 
 Lord "Mansfield, Burr. 2221. O/iiriions upon the statutes considered relatively 
 and srf)aratelv. — 1. The cause in 8 Geo. II. ch. 24. is extremely beneficial 
 to the subjects. Lord Mansfield, Burr. 823. 2. The 2 Geo. II. ch. 22. 
 enacts generally, '* tliat where there are mutual debts between the paities, one 
 *' dibt may be set against the other," upon which act of 2 Geo. II. doubts 
 have arisen about the different natures of debts; by the 8 Geo. II. ch. 24. 
 there is a general provision without exception. Lord Mansfield, Burr. 826. 
 3. The former act is general, tiiat mutual debts may be set one against the 
 other, upon which there was a doubt, and a difference of opinion, between 
 this court (K. B.) and the court of Common Pleas, concerning setting off 
 debts of different natures: the 8 Geo. II. ch. 24. allows notwithstanding the 
 ck-bts are deemed inlaw to be of a different nature. Burr. 1025. 4. The 
 dav after the last act passed, the Lord Hardwicke, Ch. J. delivered the opin- 
 io.! of the court of King's Bench, that a debt by simple contract niii^ht, by 
 the former act, have been set off against a specialty debt. Bull. Ni. 
 Pri. 179. 
 
 (w) This is obvious from observing that the following divisions of tlic 
 foregoing section in the text, correspond respectively with the four parts into 
 which toe subject is divided. 1. When there are mutual debts between 
 the plaintiff and tlie defendant at the time of tlic commencement of the action, 
 8cc. 2. One debt ivay be set against the otlier. 3. By being given in evi- 
 dence, 8cc. 4. And, ifthe plaintiff retvver in any suit or action, &c. judg- 
 ment must, £^c. 
 
 S
 
 18.-. S£T-OFF BY STATUTE 
 
 1. There must l^e mutual debts, tliat is, 
 
 1. The demand of the plamtiff and the demand of the defen- 
 dant must be a debt, and 
 
 2. The debt of each party must be due m his oum right, 
 except in the case of Executor or of Administrator, where 
 the del)ts must be due between the testator or intestate, and 
 the other party in their o^^'n rights respectively. 
 
 I. The demand of the plaintiff and of the defendant must 
 be a debt. 
 
 1. As to the demand of the plaintiff. 
 
 A set-off cannot be pleaded to any action upon a tort ; not 
 to trespass ; to case ; to replevin, or to detinue. (x) 
 
 (x) Absolom V. Knight, Bull. Nisi Pri. 181. In replevin the avowant 
 justified under a distress for rent : the plaintiff at nisi prius insisted, that 
 there was more due to him than the rent amounted to, and Denison, J. refu- 
 sed the evidence, and, upon motion for a new trial, tlie court held that 2 
 Geo. II. did not extend to the case of a distress ; for that is not an action, 
 but a remedy with.out suit : they likewise declared that it did not extend to 
 detinue, and the like actions of wrong. Vide Bai'nes 450. Laycock v. Tufi- 
 nell, E. T. 27 Geo. III. MS. Replevin for taking plaintiff's goods. — 
 Avowry for rent. Plea of set-off. General demurrer. The avowry stated 
 the rent payable half yearly, and avowed for half a year's rent. The case 
 of Graham v. Fraine, B. R. H. T. 24 Geo. III. was cited, where it was 
 held a set-off could not be pleaded in an action of replevin, it being an action 
 for a tort : and so held by BuUer. J. that a set-off in this case could not be 
 pleaded to an avowry for rent. Sapsford v. Fletcher, 4 T. R. 511. H. T. 
 32 Geo. III. (Appendix 14.) 
 
 Replevin for taking goods in the plaintiff's dwelling house. Avowry for 
 rent. Plea that the defendant was tenant to the Duke of Portland, and that 
 one Brookes was the occupier of the premises ; that, upon Fletcher's refu- 
 -sing to pay the rent, the Duke distrained upon Brookes for the value : and 
 so the plaintiff said that nothing of the said rent was in arrear to the said 
 Fletcher. General demurrer. Chambre, in support of the demurrer, urged 
 that the plea i!:i bar was no answer to the avowry : for, though it was not 
 pleaded in form as a set-off, it was so in effect : and it has been held that 
 the statutes of set-off do not extend to a replevin. (Absolom v. Knight, 
 Bull. Nisi Pri. 181.) Lord Kenyon,C. J. The general principle that has 
 been relied on in the argument, that a set-off cannot be pleaded to an avowry 
 for rent, is not questioned : it is much to be lamented that it should have 
 been so decided : however, for the sake of certainty m the law, we must 
 submit to these decisions till the legislature alter the law. Buller, J. and 
 Grose, J. of the same opinion, that a set-off cannot be pleaded to an avow- 
 ry for rent : but verdict for plaintiff, the plea being good on other 
 grovmds.
 
 IN CENiKALi ;tP 
 
 A set-olf caiiiiot be pleaded to debt on bond conditioned for 
 die performance of covenants, where damages are to be assess- 
 ed by a jmy : nor to an action for general damages in covenant 
 of assumpsit : but a sct-oiF may be pleaded to an action of 
 debt, covenant or assumpsit, for a sum certain. (y) 
 
 In an action of damages for the breach of a special agree- 
 ment, ihe defendant cannot avail himself of a set-off unless 
 the plaintiff is obliged to have recourse to the common 
 counts.(;r) 
 
 (y) Hutchinson v. Sturges, WilksRep. 261. H. T. 14 Geo. II. Bull. Nisi 
 Pri. 179. (Appendix.) DLleiidaut to the plaintiff, one of the bearers of the 
 virges of the King's household, and an officer and minister of the King's 
 court of his palace at Westminster : the condition of the bond was for the 
 appearance of S. Daniel before the judges of the King's court of his palace 
 at Westminster at, Sec. to answer T. S. in a plea of trespass on the case — 
 Plea of set-off. Judgment for the plaintiff, that a set-off'could not be plead- 
 ed to this action. Vide note (z) and (2/) page 21. 
 
 (z) Colson 8c al. Assignees of Hunter, a bankrupt, v, Wesh, 1 Esp. 
 Cases, Nisi Pri. 378. A. D. 1793. This was an action on the case. The 
 declaration stated, that Hunter, the bankrupt, on the 14th of May, 1793, 
 then being the owner of 40 barrels of pork, which were in the possession of 
 one Atkinson, a wharfinger ; and Hunter being indebted to the defendant in 
 the sum of 80/. and to Atkinson in the sum of 50/. it was agreed by and be- 
 tween Hunter and the defendant, that Hunter should give to the defendant 
 an order upon Atkinson, to deliver the 40 barrels of pork to the defendant at 
 and after the price of 6 5.s. per barrel; and that the defendant should pay 
 iiimself 40/. of his debt, the 50/. to Atkinson, and pay over the remainder to 
 Hunter, to wit, the sum of 40/. ; and that in consequence of this agree- 
 ment, the pork was delivered to the defendant ; he paid tiie 50/. to Atkinson ; 
 but, contrary to his agreement, after receiving 40/, himself on his own ac- 
 count, refused to pay over the rcnr.iinder to Hunter, or the assignees, since 
 his bankruptcy. This action was brought by the assignees for the purpose of 
 recovering that residue. The defendant pleaded the general issue, and gave 
 notice of set-fjff, of a large debt due from Hunter to him. The plaintiff prov- 
 ed the agreement, as laid in the declaration, and an express promise by the 
 defendant to pay over t!ie remainder, only deducting the discount ; and that 
 there should no attachment issue on it, or deduction be made. Erskine for 
 the plaintiff insisted, 1. That this was a description of action, jn which a 
 set-off could not Ije allowed ; but 2. That if it was an ;iction in which a 
 set-off could be allowed, the defendant had precluded himself from taking the 
 benefit of it, by his own agreements, he having thereljy waved every benefit 
 of tiiat sort by iiromising to pay over the residue of the price of the poik, 
 after deducting llie sums of 40/. and 50/. without any furtiicr deduction 
 whatsoever. Eord Kenyon, said, he was of opinion that evidence of set-off 
 wxs inadmissible ; that the declaration was very ingeniously drawn, and was 
 on the face of it not an action for a debt, but for tlamages for breach of at\
 
 20 SET-OFF BY STATUTE 
 
 A set-ofF may be pleaded to an action for the arrears of an 
 annuity. (2a) 
 
 2. As to the demand of the defendant. 
 
 If a debtor is discharged out of execution, thougli upon 
 terms with which he does not afterwards com pi}-, the debt is 
 extinguished, and cannot be set-off. (2/6) 
 
 A debt barred by the statute of limitations cannot be set- 
 off.(2r) 
 
 It is said to have been ruled at Nisi Prius that, if the de- 
 
 agreement ; that the statute of set-ofFwent only to cases of mutual debts : if 
 therefore the plaintiff had been forced to have had rccov.rse to the comu^.on 
 count for money had and received, in such case the set-off' would be admis- 
 sible ; but not in the present case, where the plaintiff had proved the special 
 count a ground of action. The pUdntiff recovered. In the next term, a new 
 trial was moved for, but the court refused a rule to shew cause. Mde Ivcch- 
 mere v. Hawkins, and Atkinson v. Elliott, postea. 
 
 (2a) Collins V. Collins, 2 Burr. 820. A. D. 1759. (Appendix.) Debt on 
 bond : the condition appeared upon oyer to pay the plaintiff an annuity of 10/. 
 a year during his life : and likewise to maintain him in meat, drink, washing, 
 and lodging in the dwelling-house at Arundal-cnd for f.nd during lis life. 
 As to the payment of the annuity of 10/. per annum there was a plea of set- 
 off", viz. that only 60/. is due to the plaintiff on account of the said annuity ; 
 and that the plaintiff' owes him more than 60/. ; and after the most mature 
 deliberation, the court were unanimously and clearly of opinion that the plea 
 ■was valid. 
 
 {2b) Jaques v. Withy, 1 Term Rep. 557. A. D. 1787. (Appendix.) 
 Assumpsit. Set-off" 340/. upon a judgment recovered in Trin. Term in the 
 22d year, 8cc. by the defendant against the plaintiff, which is still in force and 
 unsatisfied. The facts were that the plaintiff", being in execution under this 
 judgment, Avas liberated on consideration of his undertaking, by bond and 
 •warrant of attorney, to satisfy the judgment by instalments or by an annuity ; 
 and the present defendant was afterwards obliged to deliver up this boud and 
 warrant to be cancelled by reason of a niistake, informality and irregularity 
 in the memorial. The court were clearly of opinion tluit the plea wa.s bad. 
 Per Buffer, J. The case of Vigo v. Abdich goes the whole length of this ; for 
 it shows that if a defendant has been once discharged out (-f e::ecution upon 
 terms which are not afterwards complied with, the plaintiff' cannot resort to 
 the judgment again, or charge the defendant's person in execution: so here 
 if the defendant has neglected to avail himself of the advantage of tlie secu- 
 rity, it is his own fault, and he must take the consequences. Judgment for 
 plaintiff". 
 
 (2c) If a debt barred by the statute of limitations be pleaded as a set- 
 off", the plaintiff" may reply the statute : if it be given in evidence on a notice 
 of set-off, it may be objected to at the trial. Bull. Nisi Pri. 180. The same 
 doctrine is allowed in Cranch, Extrin. v. Kirkman and others, Peake's Cases. 
 121. A. D. 1791. (Appendix.)
 
 I N G E N E R A L . 21 
 
 mand of the pkiiiitifl' and the demand of the defendant be both 
 upon bills of exchange for their mutual aeconiniodation ; and 
 these bills are of the same date and given in the same transaction, 
 and of abo\'e six years standing ; and, if the operation of the 
 statute against the demand of the plaintiff be prevented by is- 
 suing process within six years, the defendant's demand, though 
 no such process has been issued, may be set oft".(2c/) 
 
 If a tradesman make goods according to order, but refuse 
 to deliver them till the vendor, who is insolvent, procures some 
 person to join him in giN'ing a security for the payment, it 
 seems that the price of the goods is a debt, and mav be set- 
 off. (2f) 
 
 Unliquidated damages cannot be set-off, but liquidated dam- 
 ages may be set-off. (^T) 
 
 {2d) Ord. V. Ruspini, 2 Esp. Cases, 369. T. T. 37 Geo. III. (App. 15.) 
 The plaintifl''s demand arose on a bill of exchange due in the year 1784, 
 which he had kept alive by suing; out process within the 6 years — the set- 
 off consisted of bills and notes of the plaintiff, of the same date, which the 
 defendant had taken up or paid on the plaintiff's account: but they had not 
 been kept alive bv issuing any process : Upon an objection to their inadmis- 
 sibility, Lord Kenyon said, thtit, as the transactions between the plaintiff and 
 the defendant were ail of the same date, and as the bills seemed to have been 
 given in the course of these transactions, and for their accommodation, it 
 would be the iiighcst injustice to allow one to have an operation by law and 
 not the other, and that he weuld therefore hokl the latter to be good as well 
 as the former, and suffer them to be set-ofl'; and upon proof of their pay- 
 ment, they were set-off, and the defendant had a verdict. 
 
 (2t) Dunmore v. Taylors. Peake's C'ases, Nisi Pri. 4 1 H. T 31. Geo. III. 
 Assumpsit for goods sold and delivered — Set-ofl" for goods sold and delivered, 
 and also for goods bargained and sold. On the cross-examination of tlie 
 plaintiff's witness, it appeared that the defendant had made a waggon for the 
 plaintiff, but had refused to deliver it unless the plaintiff Mould get .some 
 person to join him in giving a ^:t;curity for the balance which the delivery of 
 rlie waggon would make in his favour: the pkiintiff was then insolvent. — 
 It was objected that this contract, being only executory, could not be made 
 the subject of a set-ofl^ — Buller, J. thought it could be set-off as ("-(xjds bar- 
 gained and sold. When the cause had proceeded further, it appeared that it 
 was afterwards agreed tiiat the plaintiff should not have the waggon, but that 
 the defendant should keep it. Upon which the plaintiff had a verdict. Note, 
 after the cause was over, Mr. J. Buller said, that he thought an indebitatus 
 assumpsit woukl lie in this case, but that there was some nicety in the (jues- 
 tion. 
 
 (2/) Nedriff V. Hogan. E. 32 Geo. II. Bull. Nisi Pri. 180. To assumpsit 
 for 40/. lent, bcr. the defendant pleaded articles of agreement wiili nuitual 
 covenants in a penalty of 200/. for perlbrmunce, and showed a breach wiicrc-
 
 22 SET-Oil' BY STATUTL 
 
 II. 'i'o constitute niutuaiity of debts it is ako necessary t/iai 
 the debt of each party he due hi his oivn 1'iglit : except in the 
 case of I^xecutor or Adniuiistrator^ ivJiere the debt must be due 
 between the testator and intestate and the other party in their 
 OlVji rights respectively. 
 
 by the penolty became due, and offered to set-oil': on demurrer, the court 
 held this plea not within the statutes of set off, for there may not be 5/. justly 
 
 due to tlie defendant on the balance. Freeman v. Hyctt, 1 Black. Rep. 
 
 3')'i. M. 3 Geo. III. This action was for money due for a parcel of cloth. 
 Dunning moved to stay the trial of the cause in order to send a commission 
 into Portugal to establish a fact by way of set-off ; viz. that in a former parcel 
 of cloths st^nt to Portugal, and bought of the same plaintiff, it appeared on 
 opeiiing the bale, that they v/ere burnt in the pressing, which had greatly 
 lowered their v.ilue. — Norton, Solicitor General, objected that the set-ofi" Avas 
 not maintainable — You might as well set-off the damages which you are en- 
 titled to recover for a battery : you shall bring your special action on the 
 case. And of that opinion was the court, and denied the motion. Howlet 
 and others v. Strickland, Cowp. 56. E. 14 Geo. III. (App. 17.) This was an 
 action of covenant. The defendant pleaded that he had sustained greater 
 damages by reason of the breaches committed on the part of the plaintiff 
 than the value of tlie damages sustained by the plaintiff on account of the 
 breaches alleged in the declaratioii : all the breaches assigned in the plea 
 were for non-delivery of allum in due time. The plaintiff demurred, and for 
 special cause assigned that it was not competent to the defendant to plead 
 the damages by way of set-off. — Lord Mausiield. I take this plea to be mere- 
 ly for the purpose of delay. The act of parliament and the reason of the thing 
 relate to mutual debts only. These damages are no debts, and indebitatus 
 assumpsit could not be brought for them. Mr. J. Ashhurst. Debts to be set- 
 off must be such as an indebitatus assumpsit will lie for. Mr. J. Aston. Clear- 
 ly an unliquidated demand or uncertain damages cannot be set-off. Judg- 
 ment for plaintiff. Wcighall v. Waters, 6 Term. Rep. 488. A. D. 1795. 
 (App. 18.) To an action of covenant for half a year's rent, 271. 10s. due at 
 Christmas 1794, for a house demised by the plaintiff to the defendant for 21 
 years from Christmas 1788, the latter pleaded, that by the said indenture 
 (on which the action was brougi.i) he, the defendant, covenanted to repair and 
 to surrender to the plaintiff at the end of the term the same premises well and 
 sufficiently repaired, " casualties by fire and tempest excepted ;" that before 
 the 24th of June, 1794, a violent tempest arose, and threw down with great 
 force and violence a stack of chimneys belonging to the house on the roof of 
 the house, Sec. and damaged the house so much that it would soon have become 
 uninhabitable if he (the defendant) had not immediately repaired it ; tha.t he 
 was obliged to layout in the repairs 30/. which the plaintiff became liable to 
 repay to him ; that that sum is still due to the defendant, and exceeds the 
 damage sustained by reason of the breach of covenant assigned ; and that he 
 is ready to set off that 30/. &c. according to the statute : to this plea there 
 was a general demurrer assignuig these causes ; that it is not alleged in the 
 plea tlvat the plaiiitiff had any notice of the tempest or of the damage thereby
 
 IN GENERAL. 23 
 
 Cases on this head relate to 
 Joint debtors and several debtors : — principal and agent: 
 — trustees: — husband and wife : — executors and administra- 
 tors, ^c. 
 
 AS TO JOINT AND SEVERAL DEBTS. 
 
 A joint debt and a separate debt cannot be set-ofF against 
 each other. (2^^) 
 
 Separate debts between partners may be set-off against each 
 other. (2/i) 
 
 done to the house, nor that lie was requested to repair the same before the 
 defendant made the repairs stated in the plea, Sec. The court said that the 
 plea could not possibly be supported, and that it did not admit of any argu- 
 ment. Lord Kenyon, Ch. J. The objection to the plea is, that it does not set- 
 off any certain debt, but uncertain damages. I do not indeed see by what 
 covenant the landlord is boinid to repair damages occasioned by fire or 
 tempest ; the exception was introduced into the lessee's covenant for his be- 
 nefit, and to exempt him from particular repairs. But if the defendant can 
 maintain any action against the plaintiff", (his landlord) the sum to be recovered 
 is uncertaui ; it must be assessed by a jury : and there is no pretence to say 
 that those uncertain damages may be set-off to the present action. If the 
 defendant has fairly laid out money in repairing what he was not bound to 
 repair, perhaps a court of equity will give him relief. Vide note (2f) 
 
 Fletcher v. Dyche, 2 Term Kep. 32. A. D. 1787. (App. 21.) Assumpsit— 
 Plea of set-off — that the plaintiff" was bound to the defendant in the sum of 
 236/. on a condition Avhich stated that the defendant had contracted with a 
 Committee for repairing the Parish Church of St. Mary le Bow, to repair 
 the same : and that the phxintiff had contracted with the defendant to per- 
 form the smith's and iromnonger's work within a certain time, or to forfeit 
 10/. a-week for every week after the expiration of the time till the completion 
 of the work ; that such smith's and ironmonger's work was not completed 
 within the limited time, but continued unfinished for 4 weeks after its expi- 
 ration : by which 40/. became due to the plaintiff', which he offered to set- 
 off — The court were clearly of opinion that the 40/. was in the nature of 
 liquidated damages, and that it might be set-off. 
 
 (2(,'-) i'his is evident, and may be collected from all the decisions 
 on set-off in the case of joint debts and several debts. V^ide the four follow- 
 ing notes. 
 
 (2/0 Smith v. De Silva. A. D. 1776. Cowp. 469. D. Lord Mansfield.— 
 The consequence on a bankruptcy between partners is, that they are enti- 
 tled, as against each other, to the balance of accounts : and so it was 
 settled in the case of Skipp v. Ilarwood (I Vcz. 239.) before Lord Hard- 
 wicke in Chancery. 
 
 Smith V. Barrow, 2 Term. R. 476. A. D. i78H. The plaintiff and Robert 
 Smith his father had been in partnership together, during which tunc- ont- 
 Keate became indelHed to them in 5ol/. Rcjberl Smith died, kaviiigthe 
 j)luinliff his sole executor. After the death of his father the plaiiuifl" took
 
 24 SET-OrF BY STATUTE 
 
 A debt on a partnership account becomes, upon the death 
 ol' all but one of the partners, a debt to the survivor in his own 
 
 the defendant into partnership, and Kcate became indebted to those two in 
 the further sum of 30/. ; he afterwards became involved, and his eflects were 
 transferred to certain trustees for the benefit of his creditors. Two payments 
 were made in the course cf distribution at diiferent times. The first wlich 
 was made to these parties (the plainliff and the defendant) was divided be- 
 tween them according- to their several proportions ; that is, the pi'oportion 
 of the former debt of 531/. to the plaintiff's separate nse, and the prc}.cr- 
 tion of the 30/. in moieties between them. After tljs the trustees trans- 
 mitted a bill of exchange to the plaintiff and defendant in their joint names, 
 and the defendant alone received the money undei" the title of Smith and 
 Banovv. The plaintiff's proportion of this second di\idcnd, so far as related 
 to his original debt, was 79/. 14.9. 6f/. for which this action for money had 
 and received was brought. A rule was obt.dned to show cause why the ver- 
 dict which had been given for the plaintiff should not be set aside, and a non- 
 suit entered, on two grounds ; first, that the action ought to have been brought 
 by the plaintiff as executor, or surviving partner : 2dly, that the remittance 
 being made to Sm.itli and Barrow, it appears to have been received on a part- 
 nership transaction, and one partner cannot maintain this action against 
 anotlier, because a receipt by one is a receipt by both. Buller, J. I am of 
 opinion not only that the action is properly brought, but that it could not 
 have been brought in any other form. In what character was the money 
 received by the defendant ? The form.er dividend was received and divided 
 according to the proportions of the respective debts of the plaintiff and de- 
 fendant as partners : then on the receipt of the second dividend by the 
 defendant, it should have been divided into two parts bearing the same pro- 
 portion to each other, as the separate demand of the plaintiff on Keate's 
 estate, and the johit demand of the plaintiff and defendant. The plaintiff 
 would have been solely entitled to the first, and must have shared the other 
 part with the defendant as due to the partnership account. So that the first 
 part of the sum was money specifically received by the defendant to the plain- 
 tiff's use. And if the action had been brought by the plaintiff as surviving 
 partner, it w'ouid have been necessary for him to have shown that he and the 
 deceased partner had a cause of action against this defendant ; but they never 
 had any such cause of action ; and it is immaterial to look back to see how 
 third persons were concerned, if as between the plaintift and defendant the 
 latter has received a sum of money for the use of the former. Then it has 
 been said, that there could not be a set-off in this case ; but I am of a different 
 opinion : for this is an action for money had and received, in which the 
 plaintiffs can only recover what is in justice due to them. Therefore suppo- 
 sing any debts were due from the plaintiffs to the defendant, it was for the 
 advantage of the latter to bring the action in this form : — With regard to the 
 sum of 30/. due to this partnership, I agree that this action cannot be main- 
 tained. One partner cannot recover a snm of money received by the other 
 unless on a balance struck that sum is found due to him alone. But this 
 objection does not apply to the larger sum in this case, v/hich is tlie one in 
 dispute. Rule discharged.
 
 ring to him from the bankrupt in bar of tlie action brought by the assignees 
 r a third of the profits of the sale."— And the fourt was clearly of opinion 
 
 GENERAL. 25 
 
 Tight, and liny be set-ofFag-ainst his separate debt. (2/) 
 A dci:)t oil a jf>int and scAcral bond may be set-oirto an action 
 
 brought l)y only one oi'the obligors. (2a-) 
 
 A debt on a bond purporting to be a joint and several bond, 
 
 but execitted only by one of the obligors, may be set-ofF to an 
 
 action eomnicncedby the obligor who has executed it. (2/-) 
 
 French, Assignee, v. Fenn, T. T. 1783. Cooke, Bank. Laws (App. 19.) 
 Action for money had and received, (ieneral issiu* and set-ofF. Verdict for 
 plaintiffs on a case. " On the 2 1th of January, 1778, Cox, Holford and 
 Fenn agreed to purchase a row of pearls for an adventure in trade, and that 
 Fenn should advance the money : the profits and loss to be equally divided 
 In thirds : and Cox and Holford were to pay Fenn interest, till the pearls were 
 sold, for the money advanced by him on their account. In November 1778, 
 Cox became a bankrupt : after which the defenrlant sent the row of pearls to 
 China, where it was sold for 60U0/. and, the net produce thereon being 
 5000.'. was remitted to the defendant." The question for the consideration of 
 the court Avas, " Vv'Iietlier the defendant was entitled to set-off the sums 
 owi 
 for 
 that the set-off Avas allov*able. 
 
 C2''J Slipper, assignee of Lans, v. Stidstone. 1 Esp. Cases, N. P. 47. A. 
 D. 1793.5 Term Rep. 493. (App. 20.) This was an action of assumpsit for 
 goods sold and delivered. Plea of the general issue, with notice of set-off. 
 The set-off was, a debt due by the bankrupt to the defendant and one Abbot, 
 Avho had been in partnership with him ; but Abbot the partner was dead be- 
 fore the bringing of the present action. Lord Kenyon allowed the set-off. In 
 the following term, Law obtained a rule to shew cause why there should not 
 be a new trial, on the supposed iiiisdirection of the judge ; but he afterwards 
 abandoned t!ic rule, it being understood that the Court of K. B. concurred 
 in opinion v/ith the Chief Justice ; and he, on being asked, admitted the 
 point not to be maintainable. 
 
 French v. Andrade, GT. R. 582. y\. D. 1796. (App. 21.) This was an 
 action upon promises : to Avhich the defendant pleaded that the plaintifi" and 
 one John Newton, who died before the conunenccment of the action, were 
 indebted to the defendant in divers sums of money, ccc. for work and labour, 
 money paid, 8cc. that those sums renrained unpaid at the death of John 
 Newton, ancl at the time of commencing this action were and still are due 
 from the plaintiff to the defendant, and that they exceed the sum due from 
 the defendant to the plaintiff, against which simi the defendant is willing to 
 set-<jff. To this plea there was a general demuri-er. Per curiam. It is per- 
 fectly clear that the debt due fr(»m the plaintiff as surviving partner may I)e 
 set-off against the demand he has in his own right on the defendant. Judg- 
 ment for defendant. 
 
 (^2X-J Fletciier V. Dyke. 2 T. R. 32. .\. D. 1787. (Apj). 21.) Assump- 
 sit. Set-offofu joint and several bond which was, in fact, executed only \)y 
 the plaintiff, (ieneral denmrrer. Per Ashhurst, J- The parlies have cnler- 
 i;d into a joint and several bond ; it i»e'-omes llu'. scpsiratc dibi of both, 
 
 1^
 
 20 SET-OFT JJY STATUTE 
 
 If a firm be carried on in the name of only one person, a se- 
 parate debt from that person may be set-oft" either to an action 
 commenced in his own right, or to an action commenced by 
 the partners. (2/) 
 
 If a person give a note to his bankers on account of a debt 
 dne to them, and the bankers indorse the note to another fnm 
 consisting of some of the partners to the banking house : the 
 maker of the note may set-off any debt due to him from his 
 bankers to an action commenced against him en the note, by 
 the firm who hold it. (2m) 
 
 and therefore may be set-off against either : — It is sufficient to say that there 
 is a separate as well as a joint debt. Buller, J. The plaintiff's coun- 
 sel then objected to this set-offj because there was no mutuality : but that 
 depends on the cjuestion whether the debt is due from the plaintiff and ano- 
 ther person, or from the plaintiff alone. If the former, the debt cannot be 
 set-off: but it appears that the bond was executed by the plaintiff alone. No 
 debt can arise upon the bond from the other party who did not execute. The 
 plaintiff therefore alone can be sued upon the bond ; so that there is mutual- 
 ity. Grose, J. of the same opinion. 
 
 f2Lj Stacey, Ross, and others v. Decy. 2 Esp. Cas. 269. M. T. 1789. 
 7 T. R. 359. (App. 30.) Assumpsit for goods sold. Set-off. The plaintiffs 
 were partners : Ross's was the only name that appeared. In an action by the 
 partners, the defendant offered to set-off a debt due to him from loss. Lord 
 Keny on was of opinion that the set-off was good, that the plaintiffs had sub- 
 jected themselves to it by holding out false colours to the world, by permit- 
 ting Ross to appear as the sole owner : that it was possible the defendant would 
 not have trusted Ross only, if he' had not considered the debt due to him- 
 self as a security against the counter demand. The other part of the propo- 
 sition, viz. that to a debt in hisovni right there may be a set off, is indisputable. 
 
 C2»iJ Fuller v. Roe and others, M. T. 34 Geo. III. Peake 197. (App. 24.) 
 Caldwell, Smith, Forbes, and Gregory, were partners in L-iverpool. 
 Caldwell, Smith, Roe, and Co. v.ere partners. 
 Forbes and Gregory wei-e partners in London. 
 
 Caldwell, Smith, Roe and Co. kept a banking account widi Caldwell, 
 Smith, Forbes and Gregory at Liverpool : and being indebted to the firm in 
 Liverpool, Caldwell, Smith, Roe and Co. gave a note for the debt ; which 
 note the Liverpool firm indorsed to Forbes and Gregory in London for a 
 sum due to that house. 
 
 In this action by the assignees of Forbes and Gregory against Caldwell 
 Smith, Roe, and Co. upon this note, the defendant insisted upon a right 
 to set-off various sums due from Caldwell, Smith, Forbes, and Gregory in 
 Liverpool. 
 
 Lord Kenyon. This note was given to Caldwell and Co. as a banking- 
 house, and constitutes an article in the accounts betvveen the defendants and 
 them. They cannot, as between themselves, raise a distinct account, 
 though they might indorse tp a tlard persQn, The affairs of tlie company i«re.
 
 IN GENERAL. 27 
 
 j^ls to Trustees. 
 
 A debt from the cestuy que trust laiiy be set off-to an action 
 eommenced by the trustee in right of the trust. {2n) 
 
 The director or trustees of any company cannot set-off a 
 debt to them as indi\'iduals against a demand upon them in 
 their corporate capacity for stock. (2o) 
 
 in presumption of lav,', Imoan to all the partners, and all are equally liable^ 
 The defendants send this bill to Caldwell and Co. to cancel part of the debt 
 due to them. Can they, by any act between themselves, divert this money 
 to another purpose, and leave the whole of the defendant's debt outstanding ? 
 
 The plaintiffs had a verdict for the balance. A motion was made for a 
 new trial, but the court refused to grant a rule to shew cause. 
 
 (2/2) Winch V. Keeley, I Term Rep. 621. A. D. 1787. Lawrence, in 
 arguing, said: In the case of Bottomky v. Brook, (M. 22 Geo. III. C. B.) 
 which was debt on bond, the defendant pleaded that the bond was given for 
 securing 100/. lent to the defendant by one E. Chancellor, and was given by 
 her direction to the plaintiff, in trust for her ; and that E. Chancellor, before 
 the action brought, was indebted to the defendant in more money tlian the 
 amount of the bond : to this there was a demurrer, which was withdrawn by 
 the advice of the court. The authority of this case was afterwards recogni- 
 zed in that of Rudge v. Birch (M. 25'Glo. III. B. R.) in this court, where, 
 to debt on bond, the defendant pleaded that the bond was given to tue plain- 
 tiff in trust for A, for a debt due from the defendant to A ; and that A, at 
 the time of exhibiting the plaintiff's bill, was indebted to the defendant in 
 more money. The plaintiff denmrred, and the court, on the authority of 
 the case of Bottomley v. Brook, held this to be a good plea. It has likewise 
 been smce i-ecognized in Webster v. Scales (M. T. 25 Geo. 111. B. R.) Ash- 
 hurst, J. The cases which have been cited by the plaintiff's counsel go a 
 great way in determining this question. It is true that formerly the courts of 
 law did not take notice of any equity or trust : but of late years, as it nas 
 been found productive of great expense to send the parlies to the otiier side 
 of the hall, wherever this court have seen that the justice of the case nas 
 been clearly with the plaintiff, they have not turned him round upon this ob- 
 jecdon. Then, if this court will take notice of a trust, why should they not 
 of an equity ? It is certainly true that a chose in action cannot strictly be 
 assigned : but tliis court will take notice of atiust, and consider who is ben- 
 eficially interested, as in Bottomley v. Brook, where the court suffered the 
 defendant to set-off a debt due from Mrs. Chancellor in the same manner 
 as if the action had been brought by her. 
 
 (20) (iibson v. Hudson's Bay Company, 1 Str. 639. M. T. 12 Geo. 1 11. 
 The plaintiff, as assignee of the effects of Evans a bankrupt, brings his bill 
 against the Company to oblige them to sufler him to transfer stock. The 
 Company insist, that Evans was their banker, and greatly indebted to them; 
 and that, upon the clause in the bankrupt act, which directs the coniniis- 
 sioners to slate the account between mutual dealers, they shall be allowed to 
 hold the stock, and account only for the balance, if any shall ai)piar against 
 them, I'U'X decreed accordingly. But, ijJ Meliorucclii v. Extliaiigc Assu-
 
 / 
 
 28 SET-OFF BY STATUTE 
 
 If there is an express bye-law to subject the slock of caclf 
 member to a satisfaction of the debt whicii he owes to the com- 
 pany, such bye-law is reasonable^ and the debts mav be set- 
 off: "(2;^) 
 
 A debt from the sherifl' cannot be set-off to an action com- 
 menced by him on a bail bond : but, if the bond be assigned 
 and an action comm.enced upon it by the assignee, a debt from 
 the assignee may be set-ofl". [2q) 
 
 ranee, 1 Eq. Abr. 9. (App. 28) it was held that the case then before the 
 touit diftered from that of the Hudson's Bay Company, because in that 
 C4ise there was an express bye-law to subject the stock of each member to 
 satisfy the debts he siiould owe to the Company ; which case (App. 28.) was 
 as follows. The plaintiffs were assignees, and brought their bill to compel 
 the defendants to assign some stock to which the bankrupt A\as entitled. — 
 The defendants insisted that the bankrup't was one of the directors of their 
 Company, and that, after iiis purchase of the stock, the Company lent him 
 a sum exceedhig the value of t!;e stock, which they insisted they had a right 
 to set-oiF. But the court would not allow the set-off; the claim cf stock be- 
 ing against the trustees in their corporate capacity ; and the loan to the 
 bankrupt by the trustees being a loan by them as private persons. 
 
 (2//) I insert this in consequence of the explanation of Gibson v. Hudson's 
 Bay Company, in IMeliorucchi v. Royal Exchange, in the last note ; though 
 I am aware that there is scarcely any necessity for making it a separate 
 article. — Because it seems that, 1st, a debt to the ivhole comjtany may be set- 
 off agciinst a demand for stock ; and, 2dly, a debt to the trustees, or to any 
 indi\ iduals, on condition that the stock shall be liable to tlie payment of that 
 debt, (which condition will be manifested by the bye-law,) may clearly be 
 opposed to each other, the accounts being connected by the nature of the con- 
 tract. Vide Introductory Chapter, page i. 
 
 (2r/) Hutchinson v. Sturges, Willes' Rep. 261. T. 14 Geo. H. C. B. in 
 fiote (App. 40.) Lofting v. Stevens, M. 1753. Bull. N. P. 179. In debt upon 
 bond the defendant pleaded a greater debt in bar, upon which the plaintiff 
 l-u'dved to have the condition of the bond inrolled which was to appear at 
 'Vvestminster, and demurred : and it was holden that this bond was not with- 
 in the 8 Geo. II. for that statute relates only to bonds conditioned to pay 
 money, and not to bail bonds; and it was not Avithin the statute 2 Geo. II. 
 because the plaintiff did not bring the action in his own right, but as trustee 
 for another ; (for he was an officer in tlie palace court) but if it had been 
 given to the sheriff, and by him assigned to the other i>arty, it might be 
 otherwise, and then the i[>enalty vvould have been considered as the debt, 
 because it would have depended upon the 2 Geo. II. The distinctions be- 
 tween the two statutes, as stated in the foregoing reports, may possibly 
 contuse and mislead : neither of the stat^^es relate to any bonds, except bonds 
 conditioned for the payment of money, and both statutes require that the 
 action should be brought in the right of the plaintiff, and not in the right of 
 another
 
 IN GENERAL. 29 
 
 As to principal agent. 
 
 A debt arising upon the contract of an agent who deals as 
 principal, may be set-off" against any demand between the a- 
 gent and die debtor. (27*) 
 
 The debts bet\veen the agent and debtor may respectively 
 be set-oft' against each other : and the debtor may set oft' a debt 
 to him from the agent to a demand by the principal. (2/-) 
 
 [2?-] The cases on lliis subject of contracts by factors are divisible into 
 three classes. 1st. IVhere the agent actually receives payment. 2dly. Where 
 the debtor of the agent insists ujiona right to set-off a debt due to him from the 
 agent, which is either to an action by the Jirincilial or to an action by the agent, 
 3dly. Where the agent insists iijion a right to sct-rff. 
 
 1st. Where thefactor actually receives payment. 
 
 Scrimshire v. Alderton, 2 Str, 1183. H. T. IG Geo. II. The plaintiff, 
 who vas a farmer, sent oats to his factor in London. The custom of the 
 trade appeared to be, that, formerly, factors had Ad. per quarter for sel- 
 ling them, ■ and gave immediate notice to the farmer of the name of the 
 buyer and the price : but, this being inconvenient to farmers at a distance, 
 it had for many years past been customary for the farmer to allow 2d. per 
 quarter more, upon the factors' taking the risk of the debts : since which 
 they had ceased to inform the farmers of the buyers. The goods in the 
 present case were sold : but, the .^actor failing, the pkuntiff before actual 
 payment gave notice to the defendant (the buyer) not to pay the factor, which 
 Ik; did notwithstanding: and thereupon this action was brought. The C. J. 
 Lee was of opinion that this new method had not deprived tlie farmer of his 
 remedy against the buyer, provided there was no payment to the factor. — 
 And the only reason of advancing 2d. per quarter was, to have both at stake : 
 and here being notice before actual payment, there could be no harm done. 
 And therefore he directed the jiuy in favour of the plaintiff. They went 
 out and found for the defendant. They were sent a second and third time 
 to reconsider it, and still adhered to their verdict: and being asked, man by 
 man, they separately declared they found for defendant. Upon this a ne>v 
 trial was moved for : and, no lause being shewn, was accordingly granted ; 
 and at the sittings after term it came on again before a special jury : when 
 the C, Justice declared that a factor's sale does, by the general rule of law, 
 ' rcatc a contract between the owner and buyer. liut, notwithstanding this, 
 the jury found for the defendant: and, being asked their reason, declared 
 that they tliought from the rirrumstances no credit was given as between the 
 owner and buyer, and that the latter was answeiable to tlie factor onlv, and 
 he only to the owner. Vide Escot v. Mil ward, (in this note,) where this 
 case is considered as law. 
 
 Drink'.v.'xter and otiiers, assignees of Dowding, v. Goodv\iii, Coup. J. 1 
 .\. D. 1773. Assumpsit. General issue. W.rdict for i)laintiffs on a speciui 
 case. 
 
 J. Dowding, tlie Irankrupt, was a clothier, and employed Jeffries a liiclor, 
 who sold to the defendant the goods in question marked I. DOWDING: 
 the clothes were sold by Jeffries, as factor, and the defendant knew him to
 
 30 
 
 3ET-CrFF BY STATUTE 
 
 If an agent have a commission del credere, it is presumptive 
 proof that he dealt as principal. {2s) 
 
 be so, in the usual course of his business, and in his own name. The money 
 was puid by the defendant to Jeffries, after notice to him from the assignees 
 not to pay it. Jeilries was a creditor of Do wding's to a greater amount than 
 the value of the goods. 
 
 After hearing the argument, Lord Mansfield — " Jeffries sold these goods 
 to the defendant Goodwin in his own name, and without any rell;rence to the 
 principal, or without even making the principal creditor for them. But the 
 goods are marked 1. DO W DING ; therefore the defendant must have known 
 he was the principal, and that v/as the reason of making that fact a part of 
 the case." A few days after, his Lordship, in delivering the opinion of the 
 court, said, 
 
 " We think tliat a factor who receives clothes, and is authorised to sell 
 them in his own name, but makes the buyer debtor to himself, though he 
 is not ansAverable for the debts, yet he has a right to receive the money : his 
 receipt is a discharge to the buyer ; and he has a ri.^-lit to bring an action 
 against him to compel the payment, and it would be no defence for the buyer 
 in that action to say, that, as between him and the principal, he the buyer 
 ought to have tliat money, because the principal is indi-bted to him in more 
 money than that sum : for the principal himself can never say that, but 
 ■where the factor has nothing due to him : there is no case in law or equity 
 where a factor, having money due to him to the amount of the debt in dis- 
 pute, was ever prevented from taking money for clothes in his hands. 
 
 Ex parte lUurray, 1783. Cooke B. Laws', 400. One Murray of Belfast 
 in Ireland, in 1782, consigned a quantity of linens to B. and H. of London, 
 to be disposed of by them as his factors, upon a del credere commission, 
 B. and H. sold the linens for 192/. 14^, and, before they received the money> 
 became bankrupts. The assignees afterwards received the money, which 
 Murray demanded of the assignees, who refused to pay it, insisting that 
 Murray might come in as a creditor vinder the commission. Murray peti- 
 tioned that the assignees might be ordered to pay him the money his linen 
 sold for, after deducting the commissions and charges, and a small surn due 
 from Murray to the bankrupts on another account. 
 
 His Lordship, after hearing the point of law argued, was clearly of opinion 
 that, the purchaser not having paid for the linens previous to the bankrupt- 
 cy, Murray the consignee was entitled to receive the price of the linen, and 
 accordingly ordered the assignees to pay him the money. 
 
 Scott v. Surman, Vv'illes 400. A. D. 1743. (Appendix.) The assignees, 
 after the bankruptcy of the factor, received some bounty money due to the 
 principal for having imported some goods. In an action by the principal 
 against the assignees, the court, on a case reserved, were unanimously of 
 opinion that the plaintiff was entitled to recover. 
 
 2dly. Where the debtor of the agent insints tifton a right to set-off a debt dw 
 to him from the agerd. 
 
 Scott V. Surman, Assignees of Scott, A. D. 1742. (Appendix) Willes 100. 
 Assumpsit. Verdict for plaintiff for 358/. iOs. subject to the opinion of the 
 court on a case in substance as follows. The plaintiff abroad consigned some
 
 IN GENERAL. 31 
 
 It has been decided that if a factor is autlioriscd to sell goods 
 
 tar to Scott liis fiictor in England ; ulio received and sold it to be paid for in 
 notes at four months date, after deducting 31/. due from the fleeter to the ven- 
 dees The factor became a bankrupt. The sum of 358/. 10.s\ consisted 
 of the proceeds of the tar actually received by the asignees from the vendees, 
 and of the 31/. The court were unanimously of opinion that judgment should 
 be entered for the plaintilT for 329/. 106'. the balance remaining after de- 
 ducting 31/. from 358/. 109. 
 
 Rabone v. Williams, cited 7 T. R.360.(App. 29.) Action for goods sold to 
 the defendant by means of the house of Rabone and Co. at Exeter, factors to the 
 plaintiff. The defendant, th.e vendee of the goods, set off a debt due to him 
 from Rabone and Co. the factors, upon another account, alleging that the 
 plaintiff aad not appeared at all in the transaction, and that credit had been 
 given by Rabone and Co. the factors, and not by the plaintiff. Lord Mans- 
 field, Ch. J. Where a factor, dealing for a principal, but concealing th.at 
 principal, delivers goods in his own name, the person contracting with him. 
 has a ri.>ht to consider him to all intents and purposes as the principal ; and 
 tliough the real principal may appear and bring an action upon that contract 
 agaii;ist the purciiaser of the goods, yet that purchaser may set-off any claim 
 he may have against the factor in answer to tlie demand of the principal-^ 
 Tliis lias been long settled. In Bailey v. Morley, London sittings alter 
 Michaelmas 1788, Lord Kenyon recognised the law of this case. The 
 case of George v. Clagget, 7 T. R. 359. (App. 29.) was decided upon the 
 authority of this case. Escot v. Milward, Cooke, and in George v. Clagget, 
 7 Ter. Rep. 359. (App. 29.) Sittings after Micliaelmas Term 1793. This 
 action was tried at (juildhall before Mr. J. Duller, in which it appeared the 
 plaintiffs were merchants in London, and in June 1783, had a quantity of 
 wiieat consigned to them from Ostend, the sale of which they intrusted to 
 one Farrer as their factor. The factors in the corn trade, like tliose in 
 the linen trade, receive a del credere connnission, besides their factorage, 
 and never communicate the names of the purchasers to the owners, except 
 in case of the factor's failure. I'arrer, on the 9th June 1783, sold 21 1 quar- 
 ters of the plaintiff's wheat to the defendant Milwaid. On the 16th June, 
 FaiTer being about to stop payment, gave up the wheat under his care to the 
 phdniiffs, and sent them the names of the buyers. On the 20th June Far- 
 rer stopped payment, and a short time afterwards his creditors executed a 
 dcL-d of composition. On the 21st June, the plaintiff delivered th.e defend- 
 ant, Mihvard, a bill of parcels of the wheat sold to lum by Farrer as their 
 factor, and desired him to accept a bill, at a month, for the amount ; which he 
 refused, insisting that he had a right to set-off a debt due to him from Farrer, 
 against tiie price of the wheat. Mr. J. Ikilkr, in i»is charge to the jury, 
 declared the doctrine liid down by LordCh. J. Lee, in Scrimshire v. Alder- 
 ton, 2 Str. Rep. 1168. to be law; but as the factor was insolvent for some 
 tinie befoie, irad avoided all dealings for a month, had desired that llure 
 mi -lit be no buying in his name, and had not dealt willi the defentlanl for a 
 year befoie, but was then in his debt, there was a verdict for the plaintiff on 
 the ground of fraud. 
 
 In George v. Claggett, 2 Esp. Cases, .5 57. E. 37 Ceo. 111. 7 Perm Rep.
 
 32 SET-OFF BY STATUTE 
 
 in his o^^ni name, and he make the buyer debtor to himself, 
 he deals as principal : though the goods, when sold, arc marked 
 
 359. A. D. 1797. (App. 29.) Action for goods sold to the defendants by- 
 Messrs. Rich and Ij[eapy, who were the plaintiff's factors, with a com- 
 mission del credere, and who dealt as principals. The plaintiff claimed a 
 right as principal to recover the price from the buyer, the money not having 
 been actually paid over to the factors before the commencement of the action. 
 The defendant claimed a right to set-off a debt due to him from Rich and 
 Heapy. Lord Kenyon ruled that the defendants were entitled to hold the 
 goods ; and that the defendants, having dealt a\ ith Rich and Heapy as prin- 
 cipals, should not be turned i\3und by the plaintiff's setting up himself as 
 principal, and considering them only as factors : that he had in a case before 
 him adopted a similar principle founded on a determination of Lord Mans- 
 field, A iz. that where a factor deals for a principal, but Avhicli principal does 
 not appear, and the factor delivers the goods in his own name, if the person 
 dealing with the factor on his own account has any demand against the factor, 
 iic has a right to consider the factor as the principal : and to set-off any de- 
 mand he may have against the factor, against the value of the goods so sold, 
 and that such would be a good answer to any action brought by the princi- 
 pal for the price of the goods. His Lordship therefore ruled that the 
 defendant was entitled to a verdict, which was so found by the jury. There 
 was a motion for a new trial. The court were clearly of opinion that the 
 directions given at the trial were right ; and that this case was not distinguish- 
 able from that of Rabone and Williams. 
 
 3dly. IV/iere the ageiit insists ution a right to set-off. 
 
 Grove y. Dubois, 1 T. R. 112. A. D. 1786. (App. 25.) Assumpsit by 
 assignees of Bankrupt. Set-off. Verdict on a special case, " that the bank 
 rupt, being an underwriter, subscribed policies filled up with the defend- 
 ant's name for his foreign correspondents Avho were unkno"\vn to the bank- 
 rupt ; that losses hr.ppened on the policies before the bankruptcy ; that the 
 defendant paid the amount of the losses to his foreign correspondents after 
 such bankruptcy ; that the defendant had a commission del credere from his 
 correspondents, was made a debtor by the bankrupt for premiums, and al- 
 ways retained the policies in his hands." The court, saying that the whole 
 turned on the nature of a commission del credere, were of opinion, that the 
 defendant,was entitled to set-off the money due on the policies to this action 
 brought against him bv the assignees of the bankrupt. 
 
 Bizev.Dickason, l' T. R. 285. A. D. 1786. (App. 27.) The plaintiff, 
 who had a commission del credei'e, Vwas indebted to the bankrupt in the sum 
 of 1356/. Os. od. The bankrupt, an underwriter, had subscribed policies 
 filled up with the plaintiff's name upon which losses had happened, and upon 
 which there Avas due 661/. 9.?. 10i7. The plaintiff, taidng for granted that 
 he Avas not entitled to set-off the 661/. 9.9. 10a'. paid his Avhole debt of 1356/. 
 0,?. od. to the assignees ; but aftenAards, discoveiing his mistake, he brought 
 an action for money had and received : and, upon a case stated for the opinion 
 of the court, recoA'e red the sum of 661/. 9s. lOrf. 
 
 Wilson, assignee of Fletcher, v. Watson and Creighton, M. 23 Geo. Ill 
 Ksp. Ni^i Pri. 974. The defendants were insurancc-brokere, and the bank
 
 IN GENERAL. 33 
 
 Tvitli tlie name of tlie principal *. and the foctor sell a»s factor in 
 the usual course of his business, and the buyer kn.ow him to be 
 tactor.{'2t) 
 
 To a demand of an agent who deals as ])rinci]xil, tiie buyer 
 cannot set-off a debt lo him from the principal. (2i') 
 .4s to husband and wife. 
 
 A debt due to a man in right of his wife cannot be set-off in 
 an action against him on his own bond.(2x) 
 
 A debt of the wife's, dum sola, cannot be set-off against a 
 claim made bv the husband alone ; unless after marriage, he 
 make the debt his own. (2^) 
 
 rupt before his bankruptcy, had underwritten foi- them several policies on the 
 ^oods, the property of others, which had been losses, and tor which the 
 bankrupt was liable : to an action brought against the defendants for money 
 due to the bankrupt, they pleaded a set-oft" of these losses : but it was held that 
 the losses being on goods the property of others, the dc!jts were properly to 
 them, not to the brokers, and therefore could not be set-otf to a demand against 
 the broker himself. 
 
 (2«) Vide Escot v. Milward, Cooke 400. 7 T. R. 359. George v. Clag- 
 get, 7 T. R. 339. Grove V. Dubois, 1 T. R. 112. Bize v. Dickascn, I T. 
 K. 2S5. in the last note. 
 
 The case of Escot v. Milward, and common sense,^ seem to show that the 
 del credere commisson is only presumptive proof. 
 
 (2/) Drinkwater V. Goodwin, Cowp. 251. in note (2r). 
 
 {2v) D. Lord Mansfield in Drinkwater v. Goodwin, Cowp. 251. in 
 note (2r). 
 
 (2x) Ex parte Walker, C. B. E. 4 Geo. III. B. N. P. 179. 
 
 {2y) Wood V. Akers, 2 Esp. Cases, N. P. 594. M. T. 38 Geo. III. This 
 was an action of assumpsit for money and goods sold and delivered. Plea 
 non-assumpsit with notice of set-ofi". The articles containjd in the set-off 
 were three several sums of money which were stated to have been paid by 
 he defendant for plaintiff, aud by his direction. One of them was a sum of 
 ■ix guineas, stated to have been piiid to a Mrs. Grundy, whicli the plaintiff's 
 wife, who was a sister of the defendant, owed her for lodging before l.er 
 intermarriage with the plaintiff. The counsel for the pluinliiV objected to 
 the allowance of this sum in the present action, on t:»e ground that lliis was 
 an action by the husband alone, and the del)t attempted lo l)e set-off was a 
 del)t due 1)y the wife before the nvirriage, for wnicli the action should be 
 against husbanrl and wife. It was answered tliat the husljand havin;^ order- 
 ed the money to be puid, had tliereby made the debt his own. Eyre, Ch. J. 
 said, that for a debt of the wife dum sfJa, ilie action must be against husband 
 and wife, and therefore could not be set-off against a claim made by t!ie 
 husband alone, and for wliich tlie action was brougiit: but if it ap[)L-ared that 
 llie husband, after the marriage, iiad ordered tiie debt to l>e paid, he tlureUy 
 made it his own, and that it could be set-oil". The defendant proved tlial the
 
 34 SET-OTF BY STATUTE 
 
 jis to executor or administrator, 
 
 A debt from an executor in his own nghi cannot be set-oiF 
 against a debt to the tcstator(2z) even though the executor 
 is residuary legatee. (3ft) 
 
 A debt which accrued in the Hfe-time of the testator cannot 
 be set-off against a debt that accrues to the executor after the 
 death of the testator.(36) 
 
 husband had done so, and was allowed the sum in his set-off: but the plain- 
 tiff had a verdict for tlie residue of his demand. 
 
 (2-) Bishop V. Church, 3 Atk. 691. A. D. 1748. The plaintiff was the 
 residuary legatee, and surviving executrix of her husband, to whom Church 
 and one Owen had given a joint bond. Church, one of the oblip,ors died, 
 and the plaintiff was" indebted upon her own private account to Owen, who 
 was a bankrupt. Lord Chancellor said, it was admitted this could not be 
 set-off at law, nor did he know of any instance here. The debts are due in 
 different rights : the act of 2 Geo. II. does not comprehend this case, nor is 
 it within 5'Geo. II. [postea,] for here was no mutual credit between the par- 
 ties, and this had been before determined in Ex parte Hope. 
 
 (3a) This may be collected from the foregoing case of Bishop v. Church 
 ill the' last note : but, query whether equity would not interfere where there 
 Avas a residuum. Vide Lanesho' v. Jones, 1 P. W. 3230, &c. postea— (and 
 vide Set-off in Equity, postea.) 
 
 (36) Shipman v. Thompson, Bull. N. P. 180. A. having been appointed 
 by B. his attorney, to receive his rents, did, after his death, receive rents in 
 arrear in B's life-time : B's executrix brought an action for the money in 
 her own name ; the defendant gave notice to set-off a debt due to him from 
 the testator which was not allowed at the trial, because the testator never had 
 any cause of action against the defendant, for the money was not received till 
 after his death. The same case is reported in Ch. J. Willes' Rep. 103. A. 
 D. 1738. C. B. (App. 30.) This came before the court on a case reserved 
 at the trial before Mr. Baron Fortescue. The plaintiff's late husband by his 
 will made the plaintiff and Dr. Morgan (since deceased) his executors : in his 
 life time he had appointed the defendant his steward by letter of attorney, 
 ■who, afterthe testator's death, received of several tenantsseveralsumsof money 
 due to the testator in his lifetime. The plaintiff brought this action inherown 
 name, not naming herself executrix^ for the money so received. The de- 
 fendant gave notice to set-off several sums due from the testator to him, 
 which the judge would not permit the defendantto set-off. The cjuestions reser- 
 ved were, 1st. Whether the plainliffshould not have declaredas executrix: 2dly. 
 Whethev the defendant ought not to have been permitted to set-off the mo- 
 ney due to him from the testator. The court, after argument, gave judg- 
 ment for the plaintiff. The reasons given by the Court of Common Pleas 
 do not ai)pear in Lord Ch. J. Willes' papers : but the same case was refer- 
 red to the opinion of Mr. Baron Fortescue, before whom the cause was tried, 
 who, after hearing the cause argued, gave the folloAving judgment in favor 
 of the plaintiff. " As to the set-off: we cannot consider the convenience or 
 the inconvenience on one side, or the other, but must go accordmg to the act :
 
 IN GENERAL. 
 
 II. The next requisite to enable a person to give a set-off in 
 evidence is, that " the debts be due at the eommencement of the 
 action.^'{'3c) 
 
 for the statute 2 Geo. II. ch. 22. s. 13. says, ov if either fiarty sues or is 
 sued as executor or administrator^ where there are mutual debts between the 
 testator or intestate, and either party, one debt may be set-off against the 
 other ; so that it is confiPied by the statute expressly to cases where the 
 suit is as executor or administrator. And therefore, in the present case the 
 suit not beiu'^- as executor, I think it is not within the statute, and that the 
 debts due from tiie testator to the defendant cannot be set-off against the 
 plaintiff in an action brought by her in her own name and not as executor. 
 And supposing this to be so, it was urged as one reason why the action 
 here ouglit to have been brought by the plaintiff as executrix : but this sta- 
 tute will not alter the law as to that point from what it was before ; and if the 
 statute has not remedied all the inconveniences, we must take it as it is, and 
 cannot, I think, extend it further. So the postea must be delivered to the 
 plaintiff, and she must have her judgment." To the above Mr. B. For- 
 tescue afterwards added this note: " N. B. The Court ofC. B. on a case 
 made, were of the same opinion, as to both points." The same point, rela- 
 tive to the set-off, has been since determined in the Court of King's Bench 
 in two cases, Kilvington v. Stevenson, E. T. 1768, on demurrer; and Teg- 
 getmeyer v. Lumlev, T. T. 25 Geo. III. on a motion for a new trial.— 
 Te^p-etmeyer v. Lumlev, T. 25 Geo. III. MS. Action of covenant by execu- 
 tors^for rent due in the life-time of the testator and also since his death. Plea of 
 set-off for money due from the testator. Verdict for defendant. Erskme 
 moved for a new trial on the ground that the defendant could not set-off a 
 debt from the testator to an action for rent since his death, and cited the cases ol 
 Ridout and another, assignees, v. Brough, Cowp. 133. and Shipman v. 
 Thomijson, Buller's Ni. Pri. 180. He also cited a note-book of Mr. J. 
 Yates of the case of Kilvington v. Stephenson, where it was held on demur- 
 rer that a debt from the testator could not l)e set-off against an action for 
 troods sold by executors, as it would disturb the course of administraUon.— 
 Cowpcr shewed cause— They have sued as executors, and as such protect 
 themselves from costs, and have united both demands. 1 he balance be- 
 tween the narties in the general account is the justice of the case. 1 he case 
 l-st cited is only a deiTumd for a debt subsequent to the death, without any 
 prior dem;UKl, and the reason that presses is the distuibance oi assctls The 
 anwswer to that is, it is the executor's fault. Lord Mansfield said he was 
 satisfied on the authoritv of tlie cases cited, and made the rvde for a new trial 
 absolute. Reported in Willes' Reports 261, in n"te ( App. W.) 
 
 (30 Reynolds v. lieering B. R. M- 25 Geo. Ill Douglas' Rep 12 n. 
 where it was determined on a demurrer, that a judgment olna.ned by the 
 defendant against the plaintiff, after the declaration was delivered -»;' >«^';>';^ 
 the plea pleaded, may be pleaded as a sel-oH ; and that although U dul n < 
 appear that the cause of acti.,n on winch the dehndant s judgment v. ob- 
 taincd was prior to the commencement ol the planu.tl s ac mn. But in 
 Kvans V. Prosser, B. R. E. 20 G.o. III. 3 Term Rep. )«r,. (Appen. 41.) v
 
 36 SET-OFF BY STATUTE 
 
 A judgment recovered by the defendant after the com- 
 mencement of the plaintiff 's action cannot be sct-oti' in that 
 action. (3c) 
 
 A judgment recovered by the defendant before the com- 
 mencement of the plaintiff's action may be set-off, though a 
 wi^it of error is pending on the judgment. (3c) 
 
 An attorney may set-off his bill, though it was not delivered 
 a month before the commencement of the action: it ought, if 
 possible, to be delivered time enough to be taxed ; but it seems 
 that it must be delivered time enough to prevent the plaintiff's 
 being sui'prised at the trial. (3 r/) 
 
 was deterrnined that a plea of set-off that the plaintiff was indebted to the 
 defendant at the time of the plea pleaded is bad ; and that it should state 
 thai he was indebted at the commencement of the action. On the day after 
 the judgment v.as given in Evans v. Prosser, i'uller, J. said, he had Icok- 
 ed into the case of Reynolds v. Beering, and found that it could not be sup- 
 ported. One question which arose there was, whether a judgment could 
 be pleaded by way of set-off pending a v/rit of error : which the Court were 
 of opinion might be done ; and so far the judgment was right. On the 
 other point there ruled, namely, that a judgment recovered after the action 
 was brought, and before plea pleaded, might be pleaded by v/ay of set-off — ■ 
 perhaps the Court did not consider the strict law so much as the justice of 
 the case. But this point cannot be supported : on which judgment was given 
 for pkuntiff. 
 
 fodj Martin v. Wmder, note in Doug. Rep. 195. Law moved, on tlie 
 part of the defendant, who was an attorney, for a rule to shew cause why the 
 proceedings should not be staid till his bill should be paid, or till a month from 
 tire delivery of it should expire, that he might be enabled to set it off: the 
 Court held that, though an attorney cannot bring an action on his bill till it 
 has been delivered a month, that circumstance is not necessary to enable 
 him to set-off — he must not produce it at the trial by surprise ; but it is suffi- 
 cient, in such case, to deliver it to the plaintiff time enough to have it taxed 
 before the trial. Upon hearing this opinion of the Court, Law withdrew liis 
 motion as unnecessary. 
 
 Bulmah v. Burldtt, 1 Esp. Cases, N.P. 449. H.T. 36Geo.in. Assump- 
 sit for goods sold and delivered. Plea of the general issue and a set-off. — 
 The action was brought to recover the amount of a tailor's bill. The set-off 
 Avas, for business done for the plaintiff as an attorney. It became a question 
 whether the party was bound to deliver a bill, under the statute 2 Geo. ILin 
 the same manntr as if he had been plaintiff in the actioi*. Lord Kenyon. 
 The rule is, that when an attorney means to avail himself of his bill for bu- 
 siness done, and to give it in evidence, he must deliver in a bill signed to the 
 plaintiff; but it is not necessary llwit a month's time should intervene be- 
 tween the delivery and the action. The cause was referred. 
 
 Hooper v. Till Sc Ux. Doug. 199. A. D. 1779. iNIotion to make a rule 
 absolute for taxing an attorney's bill after judgment : Lord Mansfield absent
 
 IN GENERAL. 
 
 SECTION II. 
 
 Of a person'' s option to waive or to avail himself of lis right 
 to set-off. 
 
 It is optional with the defendant whether he will waive or 
 avail himself of his right to sct-off.(3<?) 
 
 A set-off reducing the plaintiff's demand under forty shill- 
 ings does not affect the jurisdiction of the superior court.(3y') 
 
 Pjiiller, J. read a note of a case, where Lord Mansfield and the Court had 
 refused to pern:iit a bill to be referred to the master to be taxed, because it had 
 been read in evidence at Nisi Prius, on a notice of set-ofl", in a cause where 
 the i.ttorney was defendant, which shewed that it had been delivered a month, 
 and they held tliat it was then too late to dispute the amount of the items. 
 Tiiis case seems to pro\e only that, after judgment, where a set-ofiC on an 
 attorney's bill has been giv^m in evidv-nce, it is presumed that the bill was de- 
 livered a month previous to the commencement of the action. 
 
 (oe) The words of the statute arc, one debt maij be set against the other, 
 and such matter may be given in evidence, Sec. 
 
 (af) Pitt V. Carpenter, B. R. 1 Wilson's Rep. 19. A. D. 1743. Action 
 upon the case ; defendant pleaifed a setoff, and upon the trial the plaintifY 
 proved there was due to him from the defendant 47. 1 5s. M. and the defen- 
 dant proved the plaintiff ov. ed him 3/. 2s. so that the balance due to the 
 plaintiff was only 1/. l.'j.v. Sr/. for which he had a verdict.* Per curiam. 
 The demand of the plaintiff remains as it did before the statute for setting- 
 off one debt against another : and if the inferior court should have jurisdic- 
 tiorwn this case, it would be very inconvenient ; for, suppose there are mu- 
 tual demands of 10,000/. between merchants, and upon the balance there 
 should happen not to be above 40s. due, that coiul would have jvirisdiction in 
 that case, as well as in the present, if we should allow this ; so the rule w as 
 discharged, and the plaintiff had judgment. This doctrine is recognised in 
 Fitzpatrick v. Pickering, C.B. 2 \Nilson 68. A. D. 1773. 
 
 Gross V. Fisher, C.B. J ^Vilson 48. A. D. 1770, Assumpsit for goods 
 sold and delivered. Defendant pleaded a set-off ; and upon the trial, the 
 plaintiff proved there was due to him from the defendant 43 shillings, and 
 the defendant proved that tb.e plaintiff owed him 4 shillings ; so that the ba- 
 lance due to the plaintiff was thereby reduced to 39 shillings, for which sum 
 he hud a verdict. Curia. 'I'here is a difference between the case of mutual 
 Hchls subsi^Aing where the plaintiff's demand is n\ore than 40 shillings, the 
 ■lefendant's demand at the time of the commencement of the action reduchig 
 it to a less sum ; and the case where the plaintiff's original demand was 
 more than 40 shillings, and the defendant, before the commencement oflb.e 
 action, hath, by fuiyinrnt in part, leduced it to less than 40 shillings. In the 
 first case the plaintiff must sue here, or lose part of hisd.mand, because he 
 d(Jth not know whether the defendant can or will set-off any demand against 
 him ; but in t!ie latter case, the plaintiff, well knowing that he hath been paid 
 such part of i.is original deuiand as reduces it to less than 40 shillings, hath 
 no 1 ight to come to liiis court and demand more than 40 shillings, but must 
 
 • On .nn applicution to llie Court, tliut Uiis was williin Uic jurisdittloh of ilic Court of 
 Conscience.
 
 SET-OFF BY STATUTE 
 
 The commencement of an action or a verdict is no waiver 
 of the right to set-off the debt. (3^) 
 
 cjo to the county co\r.t. In the first case, mutual debts are subsisting at the 
 commencement of the action ; in the latter case, not ; for payment of part by 
 the defendant to the plaintitf himself is not a debt owing by the plaintiff to the 
 defendant, but a discharge of the plaintiff's demand pro tanto. No set-off 
 is used or necessary in such cases ; but payment of part is proved under non- 
 assumpsit. We cannot allow the suggestion to be entered ; so the rule must 
 be discharged. 
 
 {2g) Baskerville v. Brown, et e contra, 2 Burr. Rep. 1229. A. D. 1761. 
 (App. 42.) Brown brought an action against Baskerville upon two promis- 
 sory notes, amounting (both together) to the sum of 30/. The cause was 
 entered and tried before Lord Mansfield at the Sittings ; and the plaintiff took 
 a verdict for the tvhole of his demand. Baskerville has also brought an ac- 
 tion against Brown for 11/. I8s. for taylor's work done by him for Brown : 
 and this cause v/as likewise entered and tried at the very same Sittings ; but 
 it happt^ned that the former cause (wherein Brown was plaintiff) was first en- 
 tered and first tried. In the latter cause fwherem Baskerville was plaintiff^ 
 the therein defendant (Brown) had given notice of a set-off of so much o^ 
 the before-mentioned two promissory notes as would sviffice to answer Bas- 
 kerville's demand against him ; and he was ready at the trial to have done 
 so, not^'i^thstanding his having taken a verdict for the v. hole 30/. in tlic cause 
 wherein he v.as plaintiff. But Baskerville's counsel opposed tlus, and ip- 
 sisted that Brov/n had estopped himself from making this set-off, by having 
 taken a verdict for the tvhole of his demand ; whereas he ought (as they in- 
 sisted) to have left out so much, in taking his verdict, as was equal to Bas- 
 kerville's demand upon him. Lord Mansfield, at the trial, inclined against 
 allowing the set-off; but he thought it a matter that desei-ved consideration. 
 It was accordingly brought before the court, for their consideration, hi the 
 form of a motion made on the part of the defendant Brown, for a rule upon 
 Baskerville, the plaintiff, to shew cause w^hy the verdict (which had been 
 found for Baskerville) should not be set aside ; and why the defendant. Brown, 
 should not have the costs of a nonsuit. Lord INIansfield now delivered the 
 resolution of the Court. Per curiam, unanimously. Verdict set aside, and 
 the defendant to have the costs of a nonsuit ; and Brown to remit so much 
 of his damages recovered in the other action, as exceeds the balance of the 
 mutual debts. 
 
 Knibbs v. Hall, one, 8cc. Peake's Cases, N. P. -310. A. D. 1794. This 
 was an action brought for the use and occupation of certain rooms : the de- 
 fendant pleaded the general issue, and gave notice of set-off for business as 
 an attorney, &c. Th.e defendant had brought a cross action for his bill of 
 costs, wliich was made the subject of a set-off: That debt liad accrued, and 
 the action on it was commenced before the debt for wluch the present action 
 was brought had become due. Garrow, for the plaintiff, objected that these 
 were not such mutual debts, at the time of the commencement of the plam- 
 tiff's action, as would entitle the defendant to sue the plaintiff ; and also to 
 set-off his debt. To enable him to do so, lie contended that the debt for 
 which the present action was brought should have been due at the time the
 
 IN GENERAL. 39 
 
 It is said to have been ruled at Nisi Prius that, in an action 
 of indebitatus assumpsit, the defendiuit may plead a sct-ofF, 
 though he expressly promised to pay the debt for which the 
 action is brought, without availing himself of his right to set- 
 
 offJS/i) 
 
 SECTION III. 
 Of the pleadings and of the mode of setting-off debfs.fSiJ 
 When there are mutual debts subsisting between a testator 
 
 defendant commenced his action against the plaintiff. Lord Kenyon over- 
 ruled this objection ; being clearly of opinion that these were mutual debts 
 inthin the meaning of the statute. This and the other cause were referred 
 to arbitration. 
 
 fS/iJ Lechmere, Esq. v. Hawkins, Gent. 2 Esp. Cases, N. P. 626. H. 
 58 Geo. III. Assumpsit on a promissory note for 30/. made by the defen- 
 dant and payable to the plaintiff. Plea non assumpsit, with a notice of set-off. 
 In the summer of the preceding year, the defendant having been in Scotland 
 xipon business, where the plaintiff then resided, and being in Avant of money, 
 appUed to the plaintiff for the loan of the sum he wanted. Prior to this pe- 
 riod the defendant had been concerned for the plaintiff as his attorney ; and 
 the plaintiff was then considerably in his debt. It was stated for the plaintiff,, 
 that the defendant had promised to pay this money so lent, notwithstanding 
 tlie defendant was then his debtor ; and letters were produced in evidence 
 from the defendant to the plaintiff, wherein he promises to pay the money the 
 plaintiff" had so lent him, and for which the note had been given, without 
 taking any notice of the debt the plaintiff then owed, or affecting to set one 
 demand against the other. Upon this evidence, Erskine, for the plaintiff, 
 contended that the defendant could have no benefit of his set-off. In that 
 case, where a creditor borrows money of his debtor, under an express pro- 
 mise to pay it, it bound him under every circumstance to the absolute i)ay- 
 ment ; nor could his undertaking be satisfied by setting-off the del)t against 
 his own demand. Lord Kenyon said he knew no sucli law, nor did lie think 
 there was any such legal obUgation on tlie creditor : it might be an honorary 
 ol)Ugation, and such as a man who gave it ought to observe ; but if he 
 thought fit not to consider such an ol)hgaUon as binding, he could not com- 
 pel him. There were mutual subsisting demands at the time ot the action 
 brovight, and such as the statutes of set-off gave the party -defendant jjower 
 to set against the plahuiff's demand: Besides this, if he was to refuse the 
 set-off iiere, it would drive the defendant into a court of e(|uily, wliere llie 
 judgment obtained here would Ik- set-off against ihe debt adniilted to be due 
 by the plaintiff to the defendant. He tiierefore overruled llie ol)jeclion, and 
 admitted the defendant to go into evidence of liis sel-olT. 'i'lie cause was 
 referred. \'idc ante, note (r) and Atkinson v. Elliol, 7 Term Hep. ZTfi. 
 (Appendix.) 
 
 (30 The following is the substance of the two statutes relating to this 
 point, ante, page 16: 
 
 The debts may be set-off by being given in evidence upon tlie general 
 issue, or by being pleaded in bar : except wlicre either of the debts accrues
 
 40 SET-OFF BY STATUTE 
 
 and another person, the executor will be indemnified in setting- 
 off these debts without bringing an action. {3k) 
 
 When it is intended to give a set-oif in evidence, there are 
 two subjects of consideration : 
 
 /. IFhether it is optional either to plead or to give no- 
 tice ; and, when optional, xvhich mode of proceeding is prefera- 
 ble. II. Of the nature of the notice and of the pleadings. 
 
 I. Of the defendant's option either to plead or to give notice, 
 and of the preferable mode of proceeding. 
 
 When either of the debts accrues by reason of a penalty 
 contained in a specialty, the debt intended to be set-off' must 
 be pleaded in bar : but, in all other cases, the defendant may 
 plead or give notice of set-off at his election. (3/) If the de- 
 fendant's" demand be equal to, or greater than, the plaintiff's, 
 the action being barred, it is proper to plead the set-off: but 
 where the defendant's demand is less than the plaintiff's a no- 
 tice of set-off should be given, and a set-off is usually pleaded 
 in country causes to save the trouble and expense of provuig 
 the service of a notice. (3/) 
 
 When the defendant's demand is less than the plaintiff's the 
 defendant should move the court wherein the action is com- 
 menced for leave to pay so much money into court as will sa- 
 tisfy the plaintiff's demand. (3/) 
 
 It seems not to be settled whether a defendant may plead a 
 set-off after he has been ruled to abide by his plea : but in all 
 cases, except where either of the debts accrues by reason of a 
 penalty contained in a specialty, the same end may be attained 
 by pleading the general issue and giving notice of set-off. (3?7?) 
 
 by reason of a penalty contained in a specialty ; when the debt intended to 
 be set-ofl' must be pleaded in bar, and the plea must state how much is truly 
 and justly due on either side : but, in all cases where the general issue is 
 pleaded, notice must be given, at the time of pleading, of the particular 
 sum or debt intended to be set-off, and upon v/hat account it became due, 
 
 (3.^) Brown v. Holyoak, Bull. Ni. Pr. 179. 
 
 (3/) Tyd. K. B. 406. 
 
 (3w) Cochnin v. Robertson, M. T. 20 Geo. III. B. R. Cowper moved to 
 set aside a rule to plead several matters, and the plea of set-off pleaded in 
 consequence thereof, upon this objection, that the defendant, having pleaded 
 a judgment recovered in a former action, the plaintiff obtained a rule for the 
 defendant to alnde by his plea, or plead such other as he would abide by : 
 the defendant had pleaded a set-off which Cowper insisted he could not do, 
 but could only plead the general issue after waviiig his special plea. Buller,
 
 IN GENERAL. 41 
 
 II. Of the nature of the notice and of the pleadings. 
 As to the notice. 
 
 The notice of set-off may be given under any general issue 
 to an action where a set-off may be given in evidence. (o/z) 
 
 The notice of set-off must Idc so framed as to prevent the 
 plaintiff's being surprised at the trial by the nature of the evi- 
 dence.(oo) h.{2,p) 
 
 The notice should be neai'ly as certain as a declaration. (3o) 
 
 If there are any special circumstances they must be specially 
 stated in the notice. (3/;) 
 
 J. said the practice was so ; but that the defendant might have pleaded the 
 
 gciieral issue, and given notice of set-off ; and that this was a fair plea. 
 
 Cowper admitted the fairness of the plea, and said that, if the defendant 
 would take short notice of trial, he had no objection to it. 
 
 {on) Gov/er v. Hunt, 1 B. 104. Bull. Ni. Pri. 181. In covenant upon an 
 indenture for non-payment of rent, the defendant pleaded "non est factum," 
 and gave a notice of set-ofF. Mr. J. Dentcn, ut the assizes, was of opinion 
 he could not, upon this issue : but, upon a motion for a new trial, the court 
 held the evidence ought to have been received, for the general issue men- 
 tioned in the act must be understood to be any general issue ; and accord- 
 ingly ordered a new trial. 
 
 (jo) The notice of set-off was as follows: " Take notice, that you are in- 
 '' debted to me for the use and occupation of a house for a long time held and 
 *• enjoyed and now lately elapsed." The debt intended to be set-off was rent 
 rcs-rved on a lease by indenture, which, not being mentioned in the notice, 
 could not be given in evidence : for if it had been sliown, die pUdntiff might 
 probj-bly have proved tin eviction, or some other matter to avoid the demand. 
 These notices should be almost as certain as declarations. Bull. Ni. Pri. 179. 
 But note, this was before the statute 1 1 Geo. II. ch. 19, which gives the ac- 
 tion for use and occupation. 
 
 (3.'.) Ord, Esq. v. Uuspini, 2 Esp. Cases, N. P. 569. T. T. 37 Geo. III. 
 (App. 16.) Assumpsit on a bill of exchange accepted by tiie dellndantj 
 v.iiich was due some time in the year 1784. Pleas — Xon-assumpsit — Sta- 
 tute of limitation and a set-off. The set-off consisted of bills of exchange 
 and promissory notes of tiie plaintiff's, which the defendant liad taken up oi 
 paid on his account : tliey were all dated in the year 1784. It was objected 
 tliat, m order to entitle the defendant to go hito evidence respecting those 
 bills and notes, tliey ought to have been made tlie special objects of a set-off. 
 Lord K.enyon overruled the oljjection, and iield that they were good evidence 
 under the count for money paid to the plaintiff's use. 
 
 Han»plon v. Jarrat, 2 Esp. Cases, Ni. Ihi. ;)6U. E. T. o7 Geo. III. This 
 was an action for goods sold and delivered. The defendant i)leaded the gen- 
 eral issue, wilii notice of set-off. The set-off was in the common lui iii, 
 " that tiie pUdnti IV was indebted to him in a larger sum of money than that 
 claimed by the plaintiff, to wit, in 100/. for money had and received, lOO/. for 
 goods sold and delivered," going through tlie common counis ol the decUv- 
 
 G
 
 42 SET-OFF BY STATUTE 
 
 The notice of set-ofF should regularly be given at the time of 
 pleading the general issue ; though, if it be no^ ihen given, the 
 court will permit the defendant to withdraw the general issue, 
 and plead it again with a notice of set-off :(3^) and such riotice 
 may be given after the defendant has been ruled to abide bv 
 his plea. (3r) 
 
 As to the pleadings. 
 The plea. 
 
 x\ plea of set-off insisting upon a debt equal to a greater 
 than tliC pL.intiff's need not make an olFer to set-off the debts, 
 but may conclude as a common plea in bar, with a Aerification 
 and prayer of jadgment, Si actio, &c.(3.y) 
 
 A plea insisting upon a de'ot v/hich the plea acknowledges 
 to be less than the plaintiff's should conclude with a prayer 
 that the debt from the plaintiff may be deducted from that ovr- 
 ing by the defendant. (Sj.^) 
 
 ration. That part of the defendant's case upon -which he meant to rely in 
 support of his set-o if, liis couiisel proposed to make cut in the following- 
 manner. The defendant had for a considerable time before dealt with the 
 pldintiff; and had paid him several bills for articles furnished by tlie plain- 
 tiff, in the course of his trade to the defendant : these bills the defendant now- 
 pretended to have been overcharged, and liable to very considerable deduc- 
 tion, and these overpayments he proposed to prove and to set-off against the 
 demand cLiimed by the plaintiff in the present action. This was opposed by 
 the plainaif 's counsel on the ground that, the accounts upon wiiich these 
 payments had been made having been settled, the accounts could not now be 
 opened ; but that if tliey couid, it should have been made the object of a 
 special set-off, and could not be claimed under the general notice. It w as 
 answered by the defendant's counsel, that this money Avas paid bvmistake, and 
 would have been recoverable under the general money counts, and so, under 
 a similar clause in the notice of set-off, could be given in evidence as monev 
 had and received to the party's use. Eyre, Ch. J. said, he was of opinion 
 that It could not be given in evidence under the common notice of set-off. 
 It was taking the plaintiff by surpiise, and if the defendant meant to have 
 availed himself of it, it should have been the object of a particular notice. — 
 Iiis Lordship t'-'erefore rejected it, and the plaintiff recovered. 
 
 (09) BlackboUiT. v. Ma' -hiis, 2 Str. 1267. E. T. 20 Geo. II. The de- 
 fendant pleaded the general i-ii.ut, but forgot to give notice, at the same time, 
 of a set-off. And upon motion in time, the Court gave leave to Avithdl•a^v 
 the, plea, in order to delivf-rthe same plea again with a proper notice to set' 
 off, and s.ud it had been dohe so beibre. Strange, pro defendant. 
 
 (3r) Cochran, v. Robertson, M. T. 20 Geo. III. B. R. ante, page 40. 
 
 (3s) Bull. Ni. Pri. 179. Vv here the plea is of an equal sura, there the 
 aetiof) is barred ; but if it Ije for a less sum than for ^vhat the action is brought, 
 the defendant must pray to have it set-off.
 
 IN G E N E R .'W. 
 
 When either of the debts accrues by reason of a penalty 
 contained in a specialty, the plea must a^•er v hat is really due, 
 which averment is traversable. {'3t) 
 
 (3?) The words of the statute arc, " in -which plea shall be shown how 
 ••' much is justly and truly due on either side :" — S) mmons v. Knox, 3 Term 
 Rep. 65. A.D. 17Si). (App. 44.) Debt on bond in 11,619/. The defendant 
 pleaded, " that there -was due to the plaiuiiiV the sum of 5809/. 1 Is. 8f/. and 
 no more ; andlliat theplaintilV was indebted to the defendant in more money 
 than is remah-.ing due to the said plaintiff by vh-lue of the said writing obliga-« 
 tory ; and concluded with a set-off" in the common form." Tue plaintiif replied, 
 that there \v'as ayid vet isjusli'/ arid truly owing to the said jilaintiff from the 
 said defendant^ by virtue of the said writing obligatory, a larger aum of money 
 than the said sum of 5809/. 1 Is. %d. in the said plea mentioned, to wit, the 
 sum of 6930/. 3s. 9f/. and concluding to the country. To this replication 
 the defendant demurred ; and showed for cause, that the plaintiff attempted 
 to put in issue a matter immaterial, and therein traversed a fact, whereon 
 no certain or material issue could betaken. Lord Kenyon, Ch. J. I own I 
 form an opinion on this subject with great diflfidencj. This is an action 
 brought on a bond, in which case the statute says that, if the defendant wisl;- 
 es to set-OiTa cross demand agiiinst the plaintiff he must first state in his plea 
 what is really due on the bond : the defendant then, in this case, being 
 furnished with the means of ascertiuning the extent of the demand upon the 
 bond, states that sucii a sum only is due ; and having thus complied with 
 the requisition of the statute, setS'off across demand. And the question is, 
 whether the plaintiff is bound to admit that ihat is the extent of his demand. 
 Now, if he does not deny it in his replication, he admits it : it therefore 
 became necessary for the plaintiif to traverse it ; for if the pkuntift'were to go 
 to triul, only on the issue, whether his demand did or did not exceed the 
 defendant's, great injustice might be done. And it seems to me that there 
 is reason in requiring that the exact sum should be pleaded, because the 
 purpose of pleading is, to reduce the matter to a point. Here too the sum is 
 not pleaded under a -videlicet ; and it has been long settled that where any 
 thing is laid under a videlicet, the party is not concluded by it ; but he is 
 where there is no videlicet. It would therefore be very hard on tiiis plaintiff' 
 if he were bound by the sum, wluch tl.e defendant has stated not under a 
 videlicet, witliout having an opportunity of traveisirig it. Ashhurst, J. Here 
 the defendant pleaded that a certain sum was du-.- to the phiintifl'on the bond, 
 and no more, which would have concluded the ijlahuilf, if he had not travers- 
 ed it in his replication. Crose, S. Under this act the defendant c;innot 
 give a notice of set-off with the general issue ; l)Ut he is required to plead it 
 in bar, in which plea he must state what is really due on tlie I)ond. And as 
 far as my experience goes, the plea in this case is warianted by the usual 
 form of pleading : it has not been usual to plead that a huge sum, (o \\\i, so 
 much is due, diU thai u s/iecifir num in due ami no /nor.-. And this uhkIc is 
 certainly consonant to the 8 (ieo. H. ch. 21. There, as the dv. Iindant set 
 forth what was really due without a T'/f/rZ/rcY, the phiiutilV woidd Ik- taken to 
 have admitted it, if he had not traversed it in lus replication. Demurrer 
 overruled.
 
 44 SPT OIF BY STATUTE 
 
 The different parts of a pica of sei-off" arc as dilTerciit 
 counts in the same declaration. (3i') 
 
 If part of a jjlea of set-off be {^ood, and the rest bad ; the 
 plaintiff cannot demur generall}^ to the whole, but must single 
 out the exceptionable p;irt.(3r) 
 
 T/ie repUcatioii. 
 
 The general replication now is " not indebted in m.anncr and 
 form," which at once puts the parties on the country; and the 
 onus probandi lies on the defendant. 
 
 Grimwood v. Barrit, 6 Term Rep. 460. A. D. 1795. (App. 54.) Dcljt 
 on bond for 1 400/. conditioned for 700/. The defendant pleaded first, that 
 that there was due from the defendant to the plaintiff on the bond " a mucli 
 less sum than the 1400/. to v. it, the sum of 735/. and no more," and that 
 the plaintiff, at the time of exhibiting his bill, was indebted to h.im (the defend- 
 ant) in a much larger sum of money, to wit, 1200/. for goods sold and 
 delivered, Sec. which he is ready to set-off. The plaintiff replied, that tliere 
 was due on the bond more than 735/. namely, 835/. 0.?. 7c!. concluding to 
 the country. The defendant demurred specially ; for causes of demurrer to 
 the replication, (he said) that the plaintiff had not by his replication given any 
 answer to the plea, nor adniitted or denied that the plaintiff was indebted to 
 the defendant in manner and form as in the plea alleged. Lord Kenyon, 
 Ch. J. Wnere an averment is material, the addition of a videlicet does not 
 render it immaterial. Grose, J. This plea being founded on the 8 Geo. II. 
 ch. 24. s. 5. it was necessary fortiie defendant to show how much was due 
 on the bond : he accordingly pleaded that the sum of 705/. and no more, was 
 due, and this was traversable according to the case of Symmons v. Knox, 
 supra. But it is said that the averment of the sum here is laid under a 
 -videlicet.) which was not the casein Symmons v. Knox; but the rule is, that 
 where any thing in pleading is material, it is not rendered less material by its 
 being pleaded with a videlicet : it is still traversable ; and therefore this case 
 m\ist be governed by that of Symmons v. Knox. Lawrence, J. It vv'as neces- 
 sary Jor the defendant to sheiv the real sum due on the boiid to entitle him to 
 his set-off: and it was decided in Symmons v. Knox, that the averment of 
 that sum . was traversable ; the question therefore here is, whether the 
 introduction of the videlicet in this case makes any difference : but it certain- 
 ly does not. 
 
 {ov) Dowsland V. Thompson, 2 Blackst. 910. C. P. T. T. 13. Geo. III. 
 This was a plea of set-off tiiat certain goods were spoiled on board a ship 
 by the negligence of the plaintiff, whereby he became indebted to the defen- 
 dant in 10,000/. and also of a set-off of 10,000/. for work and labour, money 
 had and received, Sec. To this plea the plaintiff demurs, and assigns for 
 cause, that the matters of damage above supposed in spoiling the goods 
 could not be set-off. Joinder in demurrer. The Court (without entering 
 into the first Cjuestion whether the matter of damage could or could not be 
 set-off,) held that the demurrer to the whole plea was wrong ; for that the 
 latter part was certainly good : and the different parts are to be considered as 
 diffVirant counts in tJic same declaration^
 
 IIv GENERAL. " 45 
 
 The plaintiiFmay reply the statute of limitations. (Sec) 
 
 ^Vhen either of the debts accrues by reason of a penalty con- 
 tained in a specialty, the averment in the plea, as to tiie sum 
 due, must, if necessary, be traversed. (3?/) 
 
 SECTION IV. 
 The judgment. 
 
 If the plaintiff recov'cr, judgment must be entered for no 
 more than appears to be truly and justly due to him after or^e 
 debt is set against the other.(3r) 
 
 When the condition of a specialty to which a set-off is 
 pleaded, is for the payment of an annuit}' or growing sum ; the 
 judgment is to be entered for what is due, and the penalty 
 to remain as a seeurit}' against future breaches. (4«) 
 
 If the defendant, after recovering in a cross action, bar the 
 plaintiff by means of a set-off; a remittitur must be entered on 
 the first record for the sum proved under the set-off.(4Z') 
 
 (o.r) The plainuft to a ]flea of sct-ofTmciy reply the statute of limitations. 
 Remin:^on V. Stevens, Str. 1271. \'ide ante, note (2c). 
 
 (3;/) Vide ante, note (30- 
 
 (3z) This is by the express ^vords of the act, ante, note {v) page 16. 
 
 (4o) Collins V. Collins, 2 Burr. 820, A. D. 1759. (App. 33.) This was an ac- 
 tion of delit on bond conditioned, inter alia, to pay the plaintiff an annuity. 
 To an objection of counsel, that if the plaintiff should take his judgment up- 
 on this act of parliament, it would not be ajudgmenf for the pnialty^ but a 
 judgment 'mly for the mim ducj and no more ; and that uftu' the matter has 
 once passed in rem judicatum, the plaintiff cannot aftn-rjarch recover any 
 more upon this bond, whatever may become due by future non-payments ; 
 for that here is 7io jiro-umon " that the judgment A/!«//.s'a;?f/«'. a s-'curily Jhrfv- 
 lure fiaymrnts" as there was in the act of 8 and 9 W. III. ch. 1 I. made for 
 the better preventing frivolous and vexatious suits. Lord Mansiield, in deli- 
 vering the judgment, said, tiiat the judgment is indeed by the act of 8 Ceo. 
 
 II. directed to be entered " for no more than shall appear to be ju^tly and tru- 
 ly due to the plaintiH'; but it is clearly within the tvrjycU and mean u.t^oilV.c act, 
 that the ftmalty is to rniiain as a security against future breaclies, in tlis 
 case of a Af^-c/,^ pleaded, as much as it would liave dune upon liie S anrl 'J \\', 
 
 III. ch. 11. if /iai/?nc7it had been made agreeably lo llie directious llierein 
 contained. 
 
 (46) Bull. Ni. Pri. 180. Baskerville v. Brown, Burr. 1229. (.\pp. 42.) Mu- 
 tual demands may be sel-oiV in this case, and justice may be done by cntciiiij; 
 it remittiliu'on the first record as to so mucli.
 
 46 SE'i'-OFi- BY STATU IE 
 
 CHAPTER II. 
 
 OF SET-OFF IN THE CASES OF BANKRUPTS AND 
 INSOLVENT DEBTORS. 
 
 T/ie right to set-off under a commission of hankruptcij arises 
 either upon the particular statute of Set-off in the case of 
 bankruptcy ; or upon the general statute of Set-off. The 
 right to set-off in the case of insolvent debtors arises upon a 
 clause in the insolvent debtors^ act. 
 
 i wnnAu jLM-wvia,. g»r» 
 
 FJJiT I. 
 
 OF SET-OFF BY THE PARTICULAR STATUTE IN 
 THE CASE OF BANKRUPTCY. 
 
 W HEN there are mutual debts or mutual credits between 
 the bankrupt and any other person, before the bankruptcy^ the 
 commissioners or the assignees must set one demand against 
 the other ; and the residue, upon the balance of accounts, is 
 the only sum to be claimed or paid on either side. (4c) 
 
 (4c) 4 Anne, ch. 17. s. 11. And be it further enacted by the authority 
 aforesaid, that v/here there sliall appear to the comniisEioners, or the major 
 pr.rt of them, that there hath been mutual credit given between such person 
 or persons against whom such commission shall issue forth, and any person 
 or persons who shall be debtor or debtors to any such person or persons, and, 
 due proof thereof made, and that the accounts are open and unbalanced 
 tliat then it shall be lawful for the said commissioners, in the said commis- 
 sion named, or the major part of them, or the assignee or assignees of such 
 commission, to adjust the said accounts, and to lake the balance cue in full 
 discliarge thereof, and the person debtor to such bankrupt shall not be com- 
 pelled or obliged to pay more than shall appear to be due on such balance. f 
 
 5 Geo. II. ch. 30. s. 28. And be it further enacted by the authority afore- 
 said, that where it shall appear to the said commissioners, or the maior part 
 of them, that there hath been mutual credit given by the bankrupt and any 
 
 •f This M'as a temporary act, ar\<\ is now expired : tiere is a like provision in 5 Geo. I- 
 c. 24. \vl\ich rs also expifeii.
 
 IN THE CASE OF BANKRUPTCY. 
 
 This subject is divisible into two parts. 
 /. The cases in xvluch accounts may be balanced. 
 IL The modes of balancing them. 
 SECTION I. 
 The cases in which accounts may be balanced. 
 Accounts may be balanced in the case of bankruptcy, when 
 /. There are mutual debts or credits, which 
 //. Existed between the parties before the bankruptcy. 
 I. There must be mutual debts or credits, that is, 
 
 1. The demand of the assignees and of the creditor must be a. 
 debt or a credit ; and 
 
 2. The sum claimed must have been due to the bankrupt, and 
 be due to the creditor in their own rights respectively. 
 
 1. The demand must be a debt or a credit. 
 
 The legal acceptation of the Avord debt has been already ex- 
 plained. (4r/) 
 
 The \vord credit is more comprehensive than the word 
 debt.(4<') 
 
 olher person, or mutual debts between the bankrupt and any other person, at 
 any time before such person became bankrupt, the said commissioners, or 
 the major part of them, or the assignees of such bankrupt's estate, sliail 
 state the account between them, and one debt may be set against another : 
 and what shall appear to be due on either side, on the balance of such ac- 
 count, and on setting such debts against one another, and no more, shall be 
 claimed or paid on cither side respectively. 
 
 (W) Page 18, 19, 8cc. 
 
 (4?) Lord Hardwicke, in Ex parte Dcezc, 1 Atk. 228. said, notwithstand- 
 ing the rules of law as to bankrupts reduce all creditors to an equality, yet 
 it is hard wliere a man has a debt due from a bankrupt, and has at the saii^.c 
 time goods of a bankrupt in his hands, which cannot be got from iiim with.out 
 the assistance of law or equity, that the assignees should take them fixjm him 
 witliout satisfying the whole debt. And therefore the clause in the act of par- 
 liament of the 5 Geo. II. relating to nuitual credit has received a very liberal 
 construcUon, and there have been many cases wliicli that clause has been 
 extended to where an action of account would not lie, nor could tlusCouit 
 upon a bill decree an account. In Irench v. Icnn, T. T. 1783, (App. 19.) 
 Lord .Mansfield said, the act of parliment is accurately drawn to avoid the 
 injustice that would l)e done if the words were only uuilual debts, and i( 
 therefore provides for nmtual credit. 
 
 In Lanesborough v. Jones. 1 P. \V'. 325. A. D. 1716. the L<;r(l Chancellor, 
 speaking of 4 .\iin. ch. 17. ». 11. says, " This clause in the :itat\itc was not 
 to be construed of dealings in trade only, or in oilsc of nuitual rtiniiing\ic- 
 counts : Ijut that it was natural justice and (.(luiiv, tiial, in nil ruses of nuitiml 
 credit, only the lialancc should l)e paid."
 
 48 SET-OfF BY STATUTE 
 
 It seems that any equitable demand is a credit. (4^) 
 It has been decided that a legacy due from a testator who 
 admits assets may be set-off. (4/*) 
 
 It has been decided that a party to a contract on \vhich he 
 has taken usurious interest, may set-off the sum really advan- 
 ced on the contract. (4^^) 
 
 In Atkinson v. Elliot, 7 T. R. 378. A. D. 1707. (App. 52.) Lord Kenyon 
 says, " The statute 5 Geo. II. ch.20. s. 28. enacts that, where there are mu* 
 tiuil credits or mutual debts between the bankrupt and any other persons, one 
 debt may be set-oti" against another, and only the balance claimed. Now, in 
 using these words, t'le Legislature must have intended something more than 
 would have been expressed by mutual debts only, and tlie decisions referred 
 to, show that this construction has been put upon this act. 
 
 I collect this from the two following notes, and from the case of Jeffs v. 
 Wood, which, though in some respects it may, possibly, be doubted, has a 
 tendency to establish this point : which, 1 am aware, is, perhaps too general. 
 
 (4/-) Jeffs V.Wood, 2 P. W. !28. A. D. 1723.' The defendant was in- 
 debted to the flither of the plairiiiff ; and, after the death of the father, be- 
 came indebted to tiie plaintiff, the son. The father, by his will, gave 500/. 
 to the defendant, and appointed the plaintiff his executor. The defendant 
 sued the plaintiff in the Spiriiual Coiiitfor the 500/. The plaintiff brought 
 his bill against the defendant, and, he becoming u bankrupt, against the as- 
 signees under the commission, for an allowance to be made him out of the 
 legacy, for tne money v;hich the bankrupt, the legatee, owed to thd testator, 
 and likewise to the plaintiff:- — there was a cross-bill by the assignees for the 
 legacy. The Master of the Rolls observing that the assignees cculd not 
 stand in a better situation than the bankrupt stood previous to his bankrupt- 
 cy, who Avould net have been able to recover the legacy v/ithout deducting 
 what v/as due to the executor, said — 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 dt^bis due from, and to, the bankrupt ; but to this it was answered and 
 resolved, that a legacy due from an executor who admits assetts (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 ; but vide Parish v. Wil- 
 son, 31 Geo. III. Pcake 73. Decks v. Strutt, A. D. 1794. 5 T. R. 690. 
 
 (4^) Ryall, assignee of Harvest, v. Rowls, executor of Stevens, I Yez. 
 sen. 375. A. D. 1750. A sum v/as reported to be dv.t to Rowls as executor 
 from Ryall as assignee ; the assignees attempted to set-off 2000/. due from 
 Stevens upon a contract in which he had taken exorbitant and usurious iuter- 
 est. The question wasji whether the assignees should have the 2000/. as a 
 distinct independent demand, or Avhether Rov/ls should be permitted to set- 
 off. Lorvl Chancellor. The defendants insist on a reasonable rule ; the bank- 
 rupt and his assignees were certainly entitled to have the beneht of tiiis 2000/. 
 v.itli interest from liie time it ought to be paid. But, as to the general ques- 
 tion whether this case is within the act for mutual credit, I am of opinion it
 
 ly THE CASE OF BANKRUPTCY. 49 
 
 The holder of a bill of exchange \vho obtains possession of 
 it, after acceptance, in the course of its iiegociation, credits the 
 accc])tor, and may set-off the demand arising- upon it against 
 an}' debt or a-edit claimed from him by the assignees of the ac- 
 ceptor. (4y^) 
 
 In an action by the assignees of a bankrupt for damages for 
 the breach of a special agreement; the defendant cannot avail 
 himself of a notice of set-off", unless the assignees are obliged to 
 have recoiu'se to the common counts. (4?) 
 
 It has been decided that if any person ha\'e goods of the 
 bankrupt's entrusted to liim in the course of his trade or oc- 
 cupation ; he cannot, solely on account of such trust, set-off 
 against a demand for these goods any sum beyond that for 
 which he has a lien.(4A-) 
 
 is : and that there is no distinction taken, on what consideration it is that the 
 debt ought to be set-off, has arisen. There arc several cases, where de- 
 mands have been set-off against one another, that could not have been 
 brought into the general account, if there had not been a bankruptcy ; but 
 ■wherever the Court has found a demand on one side or the other, the Court 
 has always endeavoured, that one should be set against the other, which is 
 founded on the act, " that where there arc mutual debts, b:c." — This is a 
 debt due from Stevens to Harvest : a debt in equity, though possibly no re- 
 medy at law, because the law admits not the party to an usurious contract to 
 have a remedy. 
 
 (4/i) Hankey and others, assignees, v. Smith, 3 T. R. 50". A. 1). 1789. 
 (App. 46.) Assumpsit for goods sold and delivered. Set-off. Verdict for 
 the plaintiffs subject to the opinion of the Court on a case which stated that 
 the defendant, before the bankruptcy, discounted for one Towgood a bill ac- 
 cepted by the bankrupt, which bill became due a few days before the bank- 
 i-uptcy ; and that, at the time when the bill was discounted for 'I'owgood, he 
 did not indorse the same, but, by a memorandum in writing, agreed to in- 
 dorse when he should be thereunto required : that he did indorse it after the 
 bankrupt had stopped paymtnt ; and tiiat the reason why tlie bill vas not 
 indorsed, was, that, if the Ijaiikrupts had stood their ground, it might be 
 presented for payment without the indorsement of Tow good and Co. as he, 
 Towgood, wis!:td that their names sliould not appear. The (juestion was, 
 X\hethcr the defendant could s.t-off this bill against a demand upon him for 
 goods sold. Sec. Lord Kenyon Sidd, that taking this bill ronslituted a cre- 
 dit. And per Huller, J. in order to constitute mutual credit, it is not neces- 
 sary that the pailies mean to trust each othei- in that transaction ; for, if 
 a bill of exchange, which is accepted, be sent out into the world, credit isgivcii 
 tuthc acceptor by every person who lakes the bill. 
 
 (4/) Colson uikI other.';, assignees of Hunter, v. Welsh, I Esp. Cas. 378, 
 A. D. 1793. ante, p;ige I 'J. 
 
 (4/C) Lx parte Decze, I Alk. 228. A. D. 1718. A merchant boriowtd of 
 
 H
 
 50 SET-OFF BY STATUTE 
 
 A creditor, who has bills of exchange entrusted to him by a 
 trader, for the purpose of appropriating them to the payment 
 of particular debts and then to return the residue to the trader, 
 may, upon the bankruptcy of the trader, set-ofF any debt or 
 
 the petitioner, uho was a packer, the sum of 500/. on note : to whom the 
 merchant afterwartls sent six bales of cloth to pack and press. At the time 
 of the bankniptcy of the merchant part of the 500/. h.ad been paid ; and 
 tlierc was 19/. due to IIk; petitioner forthe packing and pressing these bales; 
 and there was due from the petitioner to the merchant near 1 9/. for wine : but 
 there were no goods in the liands oftlie petitioner when first he lent the mo- 
 ney, nor had there been dealings bct'.veen them for many years. It r.ppear- 
 ed in evidence that it was usual for packers to lend money to clothiers, and 
 the cloths to be a pledge, not only for the v/ork done in packing, but for the 
 loan of money likewise. (Vide Ex parte Ockenden, A. D. 1754. 1 Atk. 
 235.) — upon a. question, (inter al.) Avhether there was mutual credit, and 
 how far it extended. 
 
 The Lord Chancellor. It is very hard to say mutual credit should be con- 
 fined to pecuniary demands ; and that, if a man has goods in his hands be- 
 longing to ii debtor of his, which cannot be got fi'om him without an action 
 or bill in equity, that it should not be considered as mutual credit : and Lord 
 Cowper's opinion (in 2 Vern. 6D 1.) plainly favours that construction. 
 
 And here, though, if there had been no bankruptcy, in an action for these 
 goods, the debt could not have been set-off ; yet, as the clause of mutual cre- 
 dit has been extended, I think it may come within that rule, especially as 
 here is an account between them, on the one side 19/. due for packing &c. 
 on the other side, much about the same sum due to the bankrupt's estate for 
 wine. 
 
 Ex parte Ockenden, 1 Atk. 235. A. D. 1754. A flour-factor entrusted 
 some corn with a miller to grind. The flour-factor became a bankrupt ; 
 being indebted to the miller for the price of grinding the corn ; and, on a 
 general balance, for other corn wliich he had ground. The miller was 
 in possession of the corn at the time of the bankruptcy, and had trusted the 
 flour-factor on the general balance upon the supposition that he had always a 
 lien for his whole debt. Upon a question whether the coni was a security 
 for the general balance, 
 
 Lord Chancellor. In Ex parte Deeze before me, there was evidence that 
 it is usual for packers to lend money to clothiers, and the cloths to be a 
 pledge not only fur the work done in packing, but for the loan of money 
 likewise. Then it must come to the question upon the clause in the act re- 
 lating to mutual credit, and I omii I am extremely doubtful as to that. Plere 
 is a quantity of corn delivered from time to time by a mealman to a miller. 
 Tiie kiw gives a lien pro tanto as is due to tiie miller for grinding the corn, 
 £ind no contract appears, in this case, to extend it further ; and I must pre- 
 sume therefore it a\ as not intended to be carried further. The clause in the 
 act of 5 Geo. II. relating to mutual credit has been carried, to be sure, fur- 
 ther, and rigi:t:ully, than a mere matter of account ; but I do not know that 
 » court of equity has gone further than courts of law in the cases of a set-ofi".
 
 IX THE CASE OF BAXKRUPTCV. 51 
 
 credit due to liim from the bankrupt against a demand 
 upon him by the assignees, for the residue. (4/) 
 
 II. To constitute mutuahty of debts or of credits, it is also 
 necessary, M(7/' the sum claimed rcas due to the bankrupt and is 
 due to the creditor in their oxvu rights respectivelij.{Am) 
 
 These cases go farther indeed tlian cases of accounts, but can any case be 
 put where, in the present uistance, there could have been a set-oft'. The 
 case stood over till the 20th of August, (\'ide Green v. l-\u-mer, 1 Blackst. 
 653.) when his Lordship determined that tlie corn was not a security for the 
 general balance. 
 
 Wilkins V. Carmicheal, Uoug. 101. A. D. 1779. In an action of trover 
 brought by the assignees of a bankrupt for a ship of the bankrupt's against 
 the captain who claimed a Uen upon it for wages, stores and i)rovisions, for 
 which he was liable before the bankruptcy of tb.e owner, and had paid after 
 the bankruptcy. Lord iSIansfield. If there is no lien, can there be a set- 
 off ? This is no item of any sort in account between the bankrupt and 
 the defendant ; the ship remained in specie till after the bankruptcy : and the 
 conversion arises from an act done in the specilic property of the assignees, 
 not of the bankrupt. 
 
 (40 Atkinson v. Elliot, 7 T. R. 378. A. D. 1797. (App. 52.) In an ac- 
 tion of assumpsit a case was reserved, from which it appeared that the de- 
 fendant, on the 3d of May, 1796, drew at six months date en Hodges, the 
 bankrupt for 430/. and on the 6th of November, at six months date, for 230/. 
 The bills were accepted, and were for value received. On the 6th of No- 
 vember, when the first bill became due, the bankrtipt \\as not able to pay it ; 
 l^ut on the 9tli of the same month he gave the defendants a bill of \\'aipole 
 and Co. for 100/. due on the 1 1th of December following, and on the 10th of 
 November gave the defendants a bill accepted by Bullock and Son for 300/. 
 due also on the 1 1th of December. At the time of giving this last bill the 
 defendants gave the bankrupt the following memorandvun : " Memorandum. 
 I promise to pay to Mr. II. Hodges 170/. when his bill on Messrs. Bullock 
 and Son is paid." It was not in the contemplation of either party to do more 
 than take up the first bill for 430/. The bills for 100/. and for 500/. were duly 
 paid on the 1 Ita of December. On the 13th of December, the commission 
 of bankruptcy issued against Hodges. 
 
 The Court was clearly of opinion that the defendant was entitled to set-ofl' 
 the 170/. agauist the second bill for 270/. drawn by theni on the bankrupt, ami 
 not due till the 9th of March. Postea, to defendants. Vide note (r) page 
 19. 
 
 (4;/0 ^'illc page 23, where many of the cases respecting ihc nature of 
 deljtsflue in the rights r,f the rcsficctive fiartirti will appear to have originated 
 inbankrupt<-y. They are arranged in the former part of the work, because 
 their operation is not confined to Sct-'jJJ'in the caxc o/baiikni/itnj, but cMcnds 
 to " Scl-'jff'in gcnrral." But see the decisions in the case of Set-ofl" in Kijuily 
 (postea) where this doctrine, in the case of partners, sccnis to be a little 
 shaken; unless those cases stand on equital)le piinciplcs, v.ithout any rela- 
 tion to the statute of Set-off. N. B. Melionicchi v. Exchange Assurance, 
 ante 28, and ail the cases to pajjes 31 and ."*'. aie cases in bankruptcy.
 
 B2 SEl-OFl' BY STATUTE 
 
 2. The next requisite to enable the parties to balance at> 
 CO ints in the case of bankruptcy is, " t/mt the debt or cj'edit 
 exist between the parties before the bankruptcy. {J±n) 
 
 The c i^es on this head are divisible into two chisscs. 
 
 1 ^t. Whether the debt or credit existed before the bankrupt- 
 cy ; 2dly. Whether the debt or credit existed between the 
 parties before the bankT*iiptc}'. 
 As to the existence oftJie debt or credit before the bankruptcy. 
 
 A demand arising upon an instrument payable after tho 
 bankruptcy, cannot be set-ofl'; unless it is payable at all events, 
 on a day certain. (4o) 
 
 (4'7) The words of the statute are: "When there hath been mutual, 
 Sec. between the bankrupt and any otiier person at any time before such per- 
 son became bankrupt," &c. Vide note (Ac) page 46. 
 
 (4o) The cases on this head are of two classes. 
 
 Int. liliere the instrument is payable, at all ez'e?its, on a day certain after 
 the bankrufitcy. 
 
 2dly. IVhere the payment after the bankruptcy is uncertain, either as to the 
 time or as to the erent. 
 
 1st. Where the instrument is payable, at all events, on a day certain after the 
 bankruptcy. 
 
 Ex parte Prescott, 1 Atk. 231. A. D. 1753. A creditor for 110/. and a 
 debtor upon bond given to the bankrupt for 340/. payable on the 4th of March, 
 1756, witii interest, petitioned that the 1 10/. might be set-off against the debt of 
 340/. Lord Chancellor ordered that, upon the petitioner's agreeing to pay the 
 balance forthwith to the assignees, which the act of parliament (alluding to 7 
 Geo. I. relating to creditors Wiiere debts are payable at a future day,) requires, 
 the balance only sliould be ptdd. 
 
 Smith V. Hodson, 4 Term Rep. 211. A. D. 1791. (Appen. 49.) The de- 
 fendant accepted a bill for 442/. drawn bv the bankrupt on the 4th of March, 
 1788, and payable on the 7th of May, 1788. The bill was for 42/. for a va- 
 luable consideration, and 400/. for the accommodation of the; bankrupt. The 
 bankruptcy happened on the 29th of April, 1788. The Court, upon a ver- 
 dict for t;ie plaintiff, on a special case, were of opinion that the defendant 
 was entitled to set-off his demand upon this bill, and ordered a nonsuit to be 
 entered. 
 
 Atkinson V. Elliot, 7 T. R. 371. A. D. 1797. (App. 52.) Assumpsit and 
 case reserved. On the 6th of Septemlier, 1796, the bankrupts accepted a 
 bill of tlie defendant's at sis months date, for 230/. for goods sold to the 
 bankrupt s by the defendant. On the 13th of December, 1796, the bank- 
 ruptcy happened. In an action commenced on the 12th of February, 1797, 
 by the piaintifts against the defendant, the defendant insisted upon his right 
 to set-otf til', a )ovebill for 230/. thoughit was notdue till the 9th of March 1797. 
 
 l^ord Kenyon. In my opinion, the case Ex parte Prescott was properly 
 decided) and tnat has since been followed by a series of determiuat'on«.
 
 jy THE CASE OF BANKRUrXCY. 53 
 
 If the demand depend upon a contingency, but is secured hv 
 
 Lawrence, J. This is direcllj' witliin the autliovity of the case. Ex parte 
 Prescott. Postea to the defendant. 
 
 2dly. Where the payment after the bankriiptc]} is imcertain^ either as to the 
 time, or afi to the event. 
 
 Ex parte Groome, 1 Atk. 115. A. D. 1744. On articles previous to the 
 marriage of the petitioner, the husband covenants to leave his wife 600/. on 
 the contingency of survivintj him : a cominission of bankruptcy is taken 
 out against the husband, who dies before any dividend is made. The peti- 
 tioner applied to be admitted a creditor for the 600/ ; but the petition was 
 dismissed, the Chancellor observing tliat there was no such thing as drav.ing 
 a line between the contingency not happenuig before the bankruptcy, and yet 
 happening before the time of the distribution. 
 
 Hancock v. Entwissle, 3 Term Pvcp. 435. A. D. 1789. (App. 47.) In 
 an action on a bill of exchange, the plaintilTs having proved their case, the 
 only question was, whether the defendants were entitled to a set-ofl", arising 
 from an agreement made in March 1788, between the defendants of one part, 
 and the bankrupt of tlie otiier, by which, (after reciting that a loss had Ix-en 
 sustained by the defendants, in consequence of the purchase of some cotton, 
 by the bankrupt as their broker, for reimbursing which they made a claim 
 on him.) in order to put an end to all controversy, it was agreed tliat the 
 loss, though exceeding 1900/. should be fixed at that sum and no more ;and 
 that, in payment or s..tisfaction of that sum, the bankrupt slioukl, from lime 
 to time, witiiin the space of four years, recommend parcels of cotton, not 
 exceeding 130 bags at onetime, to tlie defendtints for their purchase, and that 
 the defendants should purciiase them, paying for them in notes at three 
 months date, jind the bankrujit undertook that the clear jirofits on such .'.a/t-.s- 
 should, in the course of fjiir years^ be sufficient to discha-ge the 1900/. but if 
 the 8a:ne should not be fmid wiihin that time, then the bankiiifit agreed, immr- 
 diatelij after the exliirationoffuur years, in case he should then be living, to fiay 
 them the difference. And if tiie purchases should occasion a loss to the 
 defendants, the bankrupt undertook to make good such loss. Loid Kenyon, 
 before wiiom the cause was tried, being of opinion that the defendants were 
 not entitled to set-off, the pLiiitilf obtained a verdict. And upon a motion 
 for anew trial, Lord Kenyon, Cli. J. said, if this deed had never lieen enter- 
 ed into, t:ie claim which the defendants had on liie bankrupt could not 
 have been set-uff in this action, because it rested merely in damages ; it 
 arose from the misconduct of the I>unkrupt, and migiit iiave been settli-d in 
 an action. But l)y tlis deed the damages are li(|uidated, and the parties 
 agreed on cert.iin tilings to l)e done in the course of lour years, as the means of 
 making a recompense to tlie defendants, to the amount of that simi. If a 
 ceitain sum of money had been payable at all events by instalments, and one 
 of the payments had become due b?iorc tiie bankru|)t(y, tlie whole might 
 have been proved under t'le con)mission. Hut it isclearlliat Ihebanknipl was 
 not discharged by his bankruptcy, from the operation of this deed ; for when 
 he obtains his certificate, he may be enabled to perform the stipulations con- 
 tained in it. Tiien, if he were not disciiarged from his covenants by his cer- 
 tificate, this debt could not be proved under the commission, nor can^it be
 
 54 S£T-Ori' BY STATU'lJ' 
 
 a penalty which is forfeited at law before the bankruptcy, it 
 may be set-ofr.(4/)) 
 
 If the payment depend upon the sur^ ivorship of two persons 
 who are aUve at the bankruptcy, it cannot be set off. (4^) 
 
 It seems tliat an instrument of indenmity given by a princi- 
 pal to a surety, and priyable after the bankruptcy of the princi- 
 
 set-ofT, for it had no existence as a debt at the time of the bankruptcy. The 
 distinction has been -well settled in a variety of cases, as in those of Ex parte 
 Groome, and Ex parte Winchester, that if the demand be payable at all 
 events, though at a future day, it may be proved under the commission ; but 
 where it depends on a contine;ency, whether it will be paid or not, it cannot 
 be proved unless it be secured by a penalty which is forfeited at law, in which 
 case the Court will take hold of the legal right to give the party a remedy 
 under the commission. But in tliis case tliere v.as no legal demand at the 
 time of the bankruptcy. And the rule was discharged. 
 
 Dobson, assignees, v. Lockhart, 5 Term Rep. 133. A.D. 1793. (App. 1.) 
 Assumpsit for goods sold. Set-ofT, of a bond on the following facts. 
 
 On the 11th of October, 178S, the bankrupt and the defendant became 
 bound to A. and B. in 900/. conditioned to pay 450/. and interest on demand. 
 
 On the 16th of May, 1789, the bankrupt, one Foster, and the defendant, 
 became bound toC. D. and E. in 1000/. conditioned to pay 500/. and inter- 
 est, on the 1st of June, 1789. These two bonds were executed by the de- 
 fendant, as a surety for the bankrupt and for his debt only. 
 
 On the 21st of May, 1789, to indemnify the defendant against these bonds, 
 the bankrupt became bound to the defendant and G. Lockhart (who was only 
 trustee for the defendant) in 1400/. conditioned to pay 700/, on the 13th of 
 February, 1790. 
 
 Afterwards, and after the bankruptcy of the principal, viz. on the 14tb of 
 December, 1789, the defendant vuis obliged to pay 470/. to A. and B. on the 
 first bond, and 236/. 17s. to C. D. and E. on the second bond. Plaintiffs 
 nonsuited, with liberty to apply to the Court to enter up a verdict, if the 
 Court should be of opinion that they were entided to recover. The judgment 
 of nonsuit was afFivmed on the general issue, but part of the judgment of 
 BuUer, J. may be applicable to this plea. He says, I agree with the plain- 
 tiff 's counsel that thei'e is no case in which it has been held that, where it 
 depends on some future event which does not take place until after the bank- 
 ruptcy, whether or not there will be any debt against the bankrupt, the debt 
 can either be proved under the commission, or set-off against a demand 
 made by the assignees.' — N. B. It does not appear in this case, at what time 
 the bankruptcy happened ; but it seems to have been between the 21st May, 
 1789, and the 14th December, 1789. Vide Drinkwater v. Goodwin, Cowp. 
 251. and Cowper v. Birch, 6 T. R. 28. — Where a liability to pay before the 
 bankruptcy, though no payment be made till after the bankruptcy, is suf- 
 ficient to entitle a person to a lien. 
 
 (1/0 D. Lord Kenyon in Hancock v. Entwissle, 3 T. R. 435. in the last 
 note. 
 
 {4(j) Ex parte Groome, I Atk. 13 5. note (4o).
 
 IN THE CASE OF BANKRUPTCY. 55 
 
 pal, may be set-off : if the suret}- be liable to pay, before the 
 bankruptcy, though no payment is made by him till after the 
 bankruptcy. (4;-) 
 
 The debt cannot be set-off, though the event be determined 
 after the bankruptcy, and before the dividend is made. (4^ ) 
 
 If a loss happen upon a polic}" of insurance before the bank- 
 ruptcy of a principal who has entrusted the broker with the 
 policy ; the broker may set-off any debtor credit due to him, 
 to a demand upon him by the assignees for the amount of the 
 losses which he receives from the undenvriters after the bank- 
 ruptcy. (4?') 
 
 If a purchase be made on speculation by three persons before 
 the time when one of them becomes a bankrupt ; and if, after 
 such bankruptcy, the speculation be carried into effect by those 
 'v\ho continue soh'ent, and it turn out beneficial, the amount of 
 the produce may be set-off to any demand due from either of 
 the solvents to the bankrupt before the bankruptcy. (4i;) 
 
 As to tJie existence of the debt or credit between the parties 
 before the bankruptcy. 
 
 A bill of exchange taken up and paid, after the bankruptcy 
 
 (4r) Dobson v. Lockhart, 5 T. R. 133. note (4o). Vide 2 T. R. 100, and 
 Ex paite Cocksliott, Cooke's Bank. Laws. 149. 
 
 (4s) Ex parte Groomc, note (4c/). 
 
 (40 Whitehead v. Vaughan, T. T. 25 Geo. III. B. R. Cooke's Bank. 
 Laws, 579. Mitford put a poHcy^ of insurance into the liands of Vaughan 
 his broker, that he might get it underwritten, whicli was done on the 3(1 
 May, 1781, by diflerent persons, \'auglianl)einghiniself one. In May, 1784, 
 a loss happened ; but, being an average loss, the actual sum due from the 
 underwriters on the policy was not licjuidated lUid ascertained till a time sulv 
 sequent to the bankruptcy of Mitford, which Avas in July, 1784. The as- 
 signees demanded tlie average loss received by the defendant, but, by sct- 
 tlng-ofl' what he had received in the general account with the iianknipt, the 
 balance was 108/. 5.v. 6^/. which the defendant paid into Court. Upon acjueslion 
 whether tiie defendant was entitled to insist upon this set-ofl', it v.as argued 
 for the plainlifT, that the debt became due from the defendant upon the re 
 ceipt of tlie average loss, vliich was after tlie bankruptcy, and therefore 
 could not besct-c^n". Mr. J. Buller said, the plaiiitilV was wrong every way : 
 1st. The bankrupt had a good cause of action before the bankruptcy, foi 
 this debt was due before the bankruptcy, though not ascertained ; 2dly. The 
 statute 5 Geo. II. c. 30. is decisive ; lor, by tliat statute, the balance only 
 is the debt. The assignees are to take the account, ajul nothing i- inri^.d 
 to their use but the balance. 
 
 (4x;) Ante, page 25, and Appendix 19
 
 56 SET-OFF BY STATUTE 
 
 oi'the acceptor, by anindorser, cannot be set-oft' by him under 
 a commission against the acceptor.(4.T) 
 
 A note indorsed to the claimant after the bankruptc}^ cannot 
 be set off. (4?/) 
 
 It is incumbent upon an indorsee to show that the indorse- 
 ment was made before the bankruptcy : but the possession b\' 
 the payee of a note made before the bankruptcy seems to be 
 reasonable evidence that it came into his possession at the time 
 it bears date. (4?/) 
 
 SECTION II. 
 The mode of balancing the accounts. 
 
 The accounts may be balanced either upon an action at \u.w 
 or before the commissioners or the assignees. (4r) 
 
 (4x) Ex parte Hale, 3 Vez. jun. 304. A. D, 1796. The acceptor of a 
 bill of exchano-e for 200/. indorsed by the petitioner, becoming a bankrupt, 
 the petitioner was obliged to take it up ; and, being indebted to the bank- 
 rupt's estate to the amount of 90/. he prayed that he might be at liberty to 
 set-off" the 90/. The Lord Chancellor dismissed the petition so far as it 
 sought to set-off the 90/. and there was not any objection to the proof of the 
 200/. But videHankev v. Smith, 3 T. R. 509. (App. 46.) 
 
 (4z/) March, assignee of ?.Iay, v. Chambers, T. T. 18 Geo. II. Bull. N. 
 V. 180.2 Str. 1234. The assignee of of a bankrupt brought an action for 
 work and labour ; the defendant gave notice of set-off ; and, at the trial, 
 produced a negotiable note given by the bankrupt antecedent to his bankrupt- 
 cy, to Scott ; and Scott's hand was proved to tlie indorsement to the defend- 
 ant, but no proof was given when it was indorsed ; upon Avhich the plaintiff 
 called two witnesses, who gave strong evidence to show it was after the bank- 
 ruptcy ; however, the defendant had a verdict ; but a new trial was granted, 
 because such indorsee ought not be in a better condition than the drawer, v/ho 
 would only have come in as a creditor under the commission. 
 
 Dickson v. Evans, 6 T. R. 59. A. D. 1794. The Court granted a new- 
 trial, Mr. J. Rooke having nonsuited the plaintiff, by allowing the defend- 
 ants to give in evidence, upon a set-off, notes made, but without any proof 
 that they were indorsed to the defendant before the bankruptcy. Lawrance, 
 J. observed, that if the notes had been made payable to the defendant liim- 
 self, he should have thought it reasonable evidence of their having come to 
 liis hands at the time they bore date. 
 
 (4:) The words of the statute are : " The said commissioners, or the 
 major part of them, or the assignees of such bankrupt's estate, shall state 
 the account between them, and one debt may be set against another : and 
 what shall appear to be due on either side, on the balance of such accounts, 
 and on setting such debts against one another, and no more, shall be claimed 
 or paid on either side respectively. 
 
 Lock V. Bennet, 2 Atk. 49. A. D. 1740. Where there are mutual de- 
 mands between a creditor and a bankrupt under the clause in 5 Geo. 11. ch. 
 30. s. 29. in which are these words, "'no more shall be claimed and paid
 
 IN THE CASE OF BANKRUPTCY. 57 
 
 Upon an action at law in the case of bankruptcy, it seems 
 that a sct-ofi' may be given in evidence without special plead- 
 ing or notice. (5c) 
 
 When an account is balanced before the commissioners or 
 the assignees, it cannot be litigated but by an application to 
 the Great Seal. (5^) 
 
 than appears to be due on either side, upon a balance of accounts stated." — 
 The master of the rolls was of opinion, that upon an action at law the defend- 
 ant might set-off his demand against the plaintiff', as is done in other cases 
 by virtue of the statute of 2 Geo. II. ch 22. s. 13. and 8 Geo. II. ch. 24. s. 
 6. and that there is no occasion to come into a court of equity to pray i\n in- 
 junction to a suit at law, and that the plaiinifi' at law may account. 
 
 (5a) Grove v. Dubois, I Term Rep. 112. A. D. 1786. (App. 25.) In the 
 case of bankruptcy the defendant gave a notice of set-oft' for money had and 
 received by the assignees for his use. It appeared in e^idence that the as- 
 signees had not received any money, but that the defendant had paid and 
 hiid out money on account of the bankrupt. Duller, J. I agree that the no- 
 tice of set-off" is bad ; but this loss may be proved and set-off' under the gene- 
 eral issue by the 28th section of 5 Geo. II. ch. 30. The words of the sec- 
 tion are : " That where it shall appear to the commissioners, or the major pait 
 of them, that there hath been mutual credit given by the bankrupt and any 
 other person, at any time before such person became bankrupt, the said 
 commissioners. Sec. shall state the account between them, iuid one debt may 
 be set-off against another, and what shall appear to be due on either side, 
 on the balance of such account, and no more, shall be claimed and paid, 
 on either side respectively." Therefore we see, by this section of the sta- 
 tute, that the assignees could legally claim no more than the balance upon 
 the account between the pailies. In Dickson v. Smith, 6 Term Hep. 57. 
 A. D. 17^4. Lord Kenyon. " It is said that the rule by which we are to 
 proceed in a court of law under the statutes of set-off", is a diff'erent rule from 
 that by which the commissioners proceed under the statute of 5 Geo. II. ch. 
 30. but it must be rememliered that that act proceeds on the law of the 
 case, and applied the same rule to the conmiissioners of bankrupts — N. B. 
 the practice is to plead or give notice of set-oif upon an action at law in the 
 case of bankruptcy, in the same manner as under the general statutes rela- 
 ting to set-off: and tliis practice seems to be just, and to be attended with 
 nxany advantages. 
 
 (5A) lirown, executor, v. BuUen, assignee. Doug. 407. A. D. 1780. This 
 was an action for money had and received for the amount of a dividend de- 
 clared by the commissioners to be due to the testator. The del'endants al- 
 leged that there was a balance due from the testator to the i)ankrupl. 'i'lie 
 defendants pleaded the general issue, witli notice of set-off. At the trial, Lord 
 Mansfield would not permit the defendants to avail themselves of the notice 
 of sei-off", saying, that as the conmiissioners have a power of setting-off" nui- 
 tual debts, the sum proved must be taken to be the balance due ; l>iit if it 
 should ha|)pen that only one side of the account appeared before the com- 
 nassioncis, or thataiiy ai title was omitted, on cither side, on ai)plication to 
 
 [
 
 58 SET-OFF BY STATUTE 
 
 PART 11. 
 
 OF SET-OFF IN BANKRUPTCY BY THE GENERAi, 
 STATUTES OF SET-OFF. 
 
 THE general statutes of set-off extend to the case of bank- 
 ruptcy. (5c) 
 
 If the assignees of a bankrupt proceed at law on a contract 
 made by tlie bankrupt after tlie bankruptcy, it seems tliat the 
 defendant may set-off any debt on a contract made on his part 
 after the bankruptcy. (5f/) 
 
 the Great Seal, the account would be again opened, and referred to the com- 
 missioners, or, in casjs of difficulty, to the Master. Verdict for tiie plain- 
 tiffs, with leave to move for a nonsuit : the Court unanimously agreed that 
 Lord Mansfield's direction was ri'^l.t. 
 
 (5c) Ryal V. Laridn, B. R. M.'20 Geo. II. 1 Wils. 155. B. N. P. 181. 
 (App. 48.) To an action of indebitatus assumpsit by the assignees of a bank- 
 rupt, the defendant pleaded a stt-ofi'of a greater sum due to liim from the 
 bankrupt before the bankruptcy ; and upon demurrer, it was holdtn that 
 the statute for setting otf mutual debts does not extend to assignees of bank- 
 rupts ; that these can never be considered as mutual debts, for where there 
 are nuitudl debts, there must be mutual remedies. (Ante page 23, where it 
 is expressly required that th.e debt of each party should be due in his own 
 right.) 
 
 Kidout, assignees, v. Brough, Cowp. 133. T. T. 14 Geo. III. A. D. 1774. 
 Assumpsit for money had and received for the use of the assignees shice the 
 bankruptcy, and the same for the use of the bankrupt before the bankruptcy. 
 Set-off of money due from the bankrupt b-.fore the bankrxiptcy, and also of mo- 
 ney due from the assignees since the bankruptcy. Demurrer. The Court were 
 clearly of opinion thatthe defendant might set-off a debt due to liim from the 
 bankrupt, for the assignees are the bankrupt ; and seemed to impeach the deci- 
 sion in 1 Wils. 155. That the statutes of set off do not extend to assignees 
 under a commission of bankruptcy, as against the general principles of law, 
 justice and good sense. But, on the other grounds, judgment was for the 
 plaintiff. 
 
 (5cZ) I class these under the gcne-ral statutes of set-off, because the partic- 
 ular statute in the case of bankruptcy expressly requires that the debts should 
 be due before the bankruptcy. 
 
 Billon v. Hyde, 1 Vez. 326. A. D. 1749. There were dealings between 
 tlie plaintiff and a bankrupt before the bankruptcy ; which continued after a 
 secret act of bankruptcy had been committed. The assignees brought as- 
 sumpsit against the plaintiff, and recovered all sums which l^ad been paid to 
 him by the bankrupt after the bankruptcy.
 
 IN THE CASE OF INSOLVENT DEBTORS. 59 
 
 PART III. 
 
 OF SET-OFF IN THE CASE OF INSOLVENT 
 DEBTORS. 
 
 ^^^HEN there is mutiml credit between an insohent debtor 
 whose property is assigned under the Lords' act, and any other 
 
 The plaintiff in equity insisted that, notwithstanding that recovery by the 
 strict rule of law, still an allowance ought to be made him for all that was 
 paid by him to the bankrupt v. iti.in the same period of time ; which was not 
 allowed at tiie trial, or by the commissioners. 
 
 The Chancellor, on the ground that the assignees ought not to have the 
 power of affirming the contracts on one side and disaffirming them on the 
 other, ordered the cause to stand over, and recommended it to the assignees 
 to compound in some manner : to which recommendation they afterwards 
 attended. 
 
 Smith, assignees, v. Hodson, 4 T. R. 2 1 1 . A. D. 1 79 1 . ( App. 49.) The de- 
 fendant had accepted a bill for 400/. for the accommodation of the b.^nkrupts, 
 which was not due at the time of the bankruptcy. On tiie eve of the bank- 
 ruptcy, the bankrupt sold to the defendant goods to tiie amount of 500/. at 
 six months credit. In an action by the assignees for the price of these 
 goods, the defendant pleaded a set-off of the bill which he had accepted ; and 
 on a case reserved, Lord Kenyon, in delivering the opinion of the Cou'.t, 
 said : "" This is an action on tae contract for tlie goods sold by the bankrujn ; 
 and, although the assignees may either affirm or ilisaffirm the contract of llie 
 bankrupt, yet, if they do affirm it, they must act consistently throughout ; they 
 cannot, as lias often been observed in cases of this kind, blow iiot and cold : 
 and, as the assignees in this case treated this transaction as a contract of sale, 
 it must be pursued through all its consequences, one of wliich is that the 
 party buying may set up the same defence to an action brought !)y the as- 
 signees, whic'.i he might have used against the bankrupt himself, and con- 
 sequently may set-off another debt which was owing from the bankrupt to 
 him. Tlierefbre, on the distinction between trover and assumpsit, we are all 
 of opinion judgment of nonsuit must be entered. 
 
 N. B. Though, in the foregoing case, the decision may be founded upon 
 the 5 Geo. II. ch. 30. as botii the debts were due before tlie bankruptcy, so 
 as to be set-off under that statute, yet the principle seems to be the same as 
 that laid down in Billon v. Hyde.
 
 OO SET-OFF BY STATUTE. 
 
 person, the assignee must balance the account^ ; and the re: 
 sidue alone passes by the assignment. (5e) 
 
 (5(') 32 Geo. II. ch. 28. s. 23. And be it further enacted, that in all and 
 every case and cases where mutual credit sliall have been given between any 
 prisoner or prisoners who shall he dischart^ed under this act, and any other 
 person oi- persons, bodies politic or corporate, before the delivery of any 
 schedule or inventory of the estate and effects of such prisoner or prisoners 
 upon oath, as by this act is herein before directed: then, and in every such 
 case, the respective assignee or assignees of such prisoner or prisoners shall 
 have power, and is and are hereby required, on his or their pan or parts, to 
 state and allow an account between them, and nothing more shall be deemed 
 to be vested by any assignment which shall be made in pursuance of this act, 
 as the estate or effects of such prisoner or prisoners, than what shall appear to 
 have been due to him, her, or them respectively, and to be justly coming to 
 him, her, or thenij on or before the balance of such account when truly stated.
 
 BOOK II. 
 
 OF SET-OFF IN EQUITY.(5/) 
 
 i\ Court of Equity will grant relief in any case where there 
 is an equitable, without a legal, right to set-off. (ojr) 
 
 If, upon the dissolution of a partnership, there is a surplus 
 after payment of partnership debts : a debtor to the partr.ership, 
 who is a separate creditor of either of the firm against whom a 
 commission of bankruptcy has issued, may set-off the joint 
 debt against the surplus to which the bankrupt is entitled. (5//) 
 
 (5/) I class the cases in notes (5//) and (5/) under Sct-nffin Equity, be- 
 cause they appear to be decided solely on eiiuiluble principles : for the words 
 mutual credit in the 5 Geo. II. extends to questions at law as well as to ques- 
 tions arising on petition to the Chancellor : and it seems to be clear tluit in 
 these cases there could not be any set-off at law. In Ex parte Ockenden, 1 Atk. 
 235, ante, page 50, the Lord Chancellor says ; " The clause in the act of 5 
 Geo. II. relating to mutual credit has been carried, to be sure, fuither, :aul 
 rightfully, tlian a mere matter of account : but I do not know tliat a court of 
 equity has gone further than courts of law in the cases of a set-off." 
 
 It is, perhaps, scarcely necessary for me to say that I consider tl.is Book 
 as incomplete. 
 
 (5,§-) Vide James v. Kynnicr, 5 Vez. jun. 108. A. D. 1792. ante p. 3, 
 (App. 5.) and the following notes. 
 
 (5/0 Lanesborough v. Jones, 1 P. W. 32;). It seems if A. and B. are 
 joint traders, and T. S. owes A. and B. on their joint account 100/. and A. 
 owes the said T. S. 100/. on his separate account : T. S. cannot deduct so 
 iTiuch as A's proportion of the 100/. comes to, out of tlie jf)Int delA ; for that 
 the copartnership debts of ,\. and B. are to be hrsl paid, before any of tlie 
 separate debts : but if there be a surplus, beyond \\lial will pay the part- 
 nership debts, then, out of A's share of the surplus, T. S. may deduct the se- 
 parate debt of A. 
 
 Ex Parte Quintin, 3 Vez. jun. 2 IK. A. D. 1796. The i)artnerslii|) between 
 Shepheid and Williams, atlorniLS ai.d solii ilors, was (fissohed in November 
 1794. In January, 1795, a ronnnissionol'bankruplry issued ai^aiiist Shep- 
 herd. ^^'illiams paid all tlie |)arlnersliip debts. Tiie jjetitioncrs were in- 
 debted to the partnership lor business done, Sic. and were separate creditors of 
 Sliepherfl to a greater amo\int, for money received by him as ilieii' agmt. 
 The prayer of the petition was to be permitted to set-olV the Iniiiki upl's share 
 of the deljts due to the partnership, against the debts due separately lr<;m 
 the i)ankrupt to the ])ctiuoners, and to prove the residue of sue li separate debts
 
 62 sET-orr by statute. 
 
 If there are two commissions of bankruptcy against the same 
 person, the one a joint, the other a separate commission, and 
 there are the same assignees under both commissions, it is 
 said that a debtor under the joint commission may set-off a 
 debt due to him under the separate commission. (5?) 
 
 under the commission. Williams was contented to receive one fourth of the 
 debt due to the partnership ; which Avas the proportion of the interest. Solicitor 
 General and Mr. Cooke for the petitioii cited what is added by the reporter to 
 Lanesborough V. Jones, 1 P. W. 326. and Mitchell v. Oldfield, 4 Term Rep, 
 123. Attorney General, contra, cited Ex parte Edwards, 1 Atk. 100, and 
 said the petitioners had no such right to set-off at the time of the bankruptcy ; 
 and the intermediate act of the other partner paying the partnership debts 
 could not put them in a different situation. Lord Chancellor. As at law 
 there can be no doubt ; for the action must be brought in the name of the two, 
 and you cannot set-off the separate deijt of one ; I agree the right is not to 
 be varied by any thing that has been done since the commission ; but the 
 right is manifest, the account being clear. In equity it would be very hard 
 where it appears that all joint debts are paid and that the other partner is 
 satisfied, and there is a surplus in which he is interested in one moiety, and 
 the indebted partner in the other — it would be very hard if, to the extent of 
 that moiety, the creditor of tliat partner cannot set-off ? I make the arrange- 
 ment. The assignees are to stand in the place of Shepherd ; Williams, be- 
 ing contented to receive his fourth, is only nominal : then shall I allow the 
 assignees to take the rest, and not permit the debtor to set-off? I think the 
 equity is a clear and and a strong one. In Ex parte Edwards, there could 
 be no purpose in directing the account, but with a view to allow it. Oi'dered 
 according to the prayer of the petition. 
 
 (52) Ex parte Edwards, 1 Atk. 100. A. D. 1745. The petitioner, being 
 a creditor under a separate commission against A. and a debtor to a joint 
 commission against A. and B. petitioned that the action brought by the as- 
 signees for the debt he owed to the joint commission m.ight be stayed, and 
 that his demand upon the separate estate might be allowed, as a set-off a- 
 gainst'the debt he owed the joint estate, especially as the same persons are 
 assignees under both commissions. Lord Chancellor. I doubt v/hether the 
 debt could be set-off under the statute relating to mutual debts ; because dif- 
 ferent persons are concerned in one debt and in the other, and in distinct 
 rights : but, as the petitioner's case appears to be a hard one, I v/ill refer it 
 to the commissioners of the bankrupts to sec how much the petitioner ov/ed 
 to the joint estate, and how much was owing to liim from the separate es- 
 tate, and to certify the same to me, and let the action brought by the assig- 
 nees be stayed, and, in the mean time, all further considerations reserved till 
 the commissioners have certified. In Ex parte Quintin, 3 Vez. jun. 248. A. 
 D. 1796, the Lord Chancellor says : In Ex parte EuAvards, there could be 
 no purpose in directing the account, bttt vrith a view to allow it.
 
 PRACTICE. 
 
 IN Practice, when an application is made to set-ofF judg- 
 ments against each other by the party to whom the hirger h,uni 
 is due, the rule is for a stay of proceedings on acknowledging 
 satisfaction for the lesser sum ; but when the lesser sum is 
 due to the party applying, the rule is to have it deducted, and 
 for a stay of proceedings on payment of the balance. (5/r) 
 
 The notice of set-off is usually written underneath the plea, 
 and deliAcred there\vith to the plaintiff's attornc}^ ; and a copy 
 of the notice should be kept by the defendant's attorney, it 
 being necessary' to prove the delivery of it at the trial. (5/) 
 
 The plaintiff may demand a particular of the sum which the 
 defendant intends to set-off. 
 
 (5/t) Bull. N. P. 336. Say costs, 24. Tyd. K.B. 679. Tyd's costs, 66. 
 Mitchell V. Oldficld, 4 T. R. 124. (App. 13.) 
 (51) 1 Cromp. 160. Tvd K. B. 408.
 
 APPENDIX. 
 
 Dobson and Jnoth-er, Assignees of Patrick, against E. Lockharf,K. li, H. T 
 3S Geo. II J. A. D. 1793. 5 Ytr. Rcji. 133. 
 
 THIS was an action of assumpsit for goods sold and delivered by the bankrupt 
 against the defendant as a surviving partner ; to which the defendant plead- 
 ed, 1st. The general issue ; 2dly. A set-off on a bond given by tJie bankrupt to the 
 defendiuit, and G. Lockhart, his late partner ; odly. (Another plea, not supported 
 in fact ;) 4tlUy. Tliat on the 11th of October 1788 tlie b:uikrupl and tlie defendant 
 became bound to 5". Nicholson, and two otlier persons, in 900/. conditioned to pay 
 450/. with lawful interest on demand ; tliat on the 16th May 1789, the bankinipt, 
 one Foster, and tlie defendant, became bound to y. Wakefield and two other persona 
 in lOOu/. conditioned to pay 500/. and interest on the 1st of June 1789 ; that those 
 two bonds were executed by tlie defendant as a surety for tiie bankrupt, and for 
 his debt only ; that before tlie bankruiitcy, ss. on the 2ist of May 1789, the bank- 
 rupt became bound to G. Lockhart and tJie defendant in 1400/. conditioned to pay 
 700/. on the 13th of February 1790 ; that the last bond was given for the purpose of 
 indemnifying the defendant against the two former, and that the name of G. Loci- 
 hart was used merely as a trustee for the defendant ; that afterwards, and :dter 
 Patrick became a bankrupt, on the 14tii of December 1789, the defendant was 
 obliged to pay Nicholson and Co. 470/. on the first bond, and Wakefield !xn(i Co. 236/. 
 17^. on tlie second bond ; that those two sums are still due to the defendant, and 
 exceed the money due to the plaintiHs on the promises mentioned in the tleclara- 
 tion, and that tlie defendant would set tliem ott' against the demand of the plaintiffs, 
 h-c. 5thly. (after stating the two first bonds as in the last plea, and that the defen- 
 dant was merely a surety, C-c.) that before tiie bankruptcy of Patrick, to wit, on the 
 21st of M,iv 1789, it was agreed between tlie defendant and the bankrujjt that, in 
 order to indemnify the defendant against these two bonds, the latter .siioulil hecomfr 
 bound to the former in 1400/ conditioned to pay 700/. witli interest on the 13th of 
 Februaiy 1790, and asafiulhcr iiulemnity, tliat tlie defendant should retain and 
 keep sucii monev, not exceeding the money to be secured by tlie last bond, as should 
 at any time be due from G. L. and the defendant to tiie l)aiikru[)t, in respect of any 
 dealings between lliem in trade, until llie two first bunds should be satisfied, and 
 that the defendant siioiJd, out of the money which should be due fi-om C. L. and 
 himself to the bankrupt, retain and set-ofVso much money, not exceeding the last 
 bond, as he siiould at any time pay oti the two first bonds ; tliat the bankrui)t ac- 
 rordingly executed such bond for 1400/. &.c. that aftir the bankruptcy, in De- 
 cember 1789, the defendant was obliged to |)ay to NithoUon and Co. aiul to Ji'ake- 
 Jield and Co. 2cc. (aa in the last plea ;) that tin- iikjiuv tine from the defendant to 
 tlie bankrupt on the promises in the (hrlaiation was so due ami ouingt«) him I'dp 
 and on account of certain dealings between him and C. L. and the <lifcn<laiU i'l 
 trade ; and that the sums paid by the <leli-n(lant on the two first bonds exceed the 
 money due to the bankrupt &.c. and that the <lifend:iiit would set-off, &c. Ke- 
 plication to secon<l plea, that at the time of biinging the action llu-re wa.s nnihinf^ 
 due to the defendant on the bond, Stc. to the 4th and 5lh pleurt, iJu*; tht bank- 
 rupt was not iiKltbtud to the defcudant in mauner ;ioJ ftiini, ? <■,
 
 2 ArrENDix. 
 
 On the trial at Appleby before Llord Kenyon, the facts contained in the last plea 
 beinjj proved, it was agreed tliat the plaintiff' should be non-suited, he liaving- liber- 
 ty to move to enter up a verdict for him if this court sliould be of opinion tliat he 
 was entitled to reco\er under these circumstances. A rule having been obtained 
 in tlie last term, callin;^ on the defendant to shew cause wliy the verdict should not 
 be entered for the plaintiff", cause was now shewn against it by 
 
 Ckambre, and Lambe, who contended that the defendant was entitled to a ver- 
 dict, either on the g'cneral issue, or on the I'ourth or fillli pleas. First. On the ge- 
 neral issue : though the assignees of a bankrupt are entitled to the benefit of all con- 
 tracts made by the bankrupt, and may therefore recover tlie value of goods sold by 
 him, they cannot vary those contracts, but, as representing the bankrupt, they are 
 bound by every p.art of tliem. Now here the contract was that the price of these 
 g'oods sliould remain in the defendant's hands until it was determined what would 
 be the consequence of the surety-bonds given by him for the bankrupt ; if those 
 bonds wei'e discharged by the banki-upt, then the defendant was to pay for these 
 C'oods, but if the defendant were compelled to pay the bonds, then the money so 
 paid was to be considered as a payment for the goods. This thei'efore was not a 
 C^eneral sale of goods, but a special contract, by which time was given to the defert- 
 dant, and until the happening of a particular event he was not to be called upon to 
 pay for them. In the event that has happened the defendant must be considered 
 as having paid for the goods according to the ag-reement, and of course the plaintiffs 
 have no demand against him. Secondly. Considered on the special pleas, the de- 
 fendant is entitled to a verdict on the ground of mutual credit between the bank- 
 rupt and the defendant. By "mutual credit" is meant "mutual trust and confi- 
 dence." Here the bankrupt gave credit by selling the goods, and the defendant by 
 becoming surety for the bankrupt. It is not necessary that the demand, whicli is 
 to be set-off' under the clause in the stat. 5 Gfo. II. c. 30. respecting mutual credit, 
 should arise before the bankruptcy, if the debt be paid afterwards in consequence 
 of a liability before. Grove v. Dubois, ante 1 vol. 122 ,• Hankey v. Smith, a?ite 3 vol. 
 507 ; Smith v. Hot/son, a. 4 vol. 211 ,■ French v. Fenn, there cited ; Toussaintv- Mar- 
 tinnant, a. 2 vol. 100 ; and Martin v. Court, ib. 640. 
 
 Law, Holroyd, and B2ll, contra. This is disting-uishable from the cases cited, 
 because at the time of the bankruptcy it was uncertain whether or not there would 
 be AX\\ debt fi-om the defendant to the bankrupt ; for if the bond were paid by the 
 bankrupt, the defendant, who was a mere surety, woidd of course have been dis- 
 charged. And it never has been held that a debt, v.hich rested in contingency at 
 the time of the bankruptcy, could be set-off'. In French v. Fenn, and Hankey v 
 Smith, there was mutual credit ; in the f )rmer, money had lieen advanced by the 
 defendant in order to purchase goods, the profits arising from wlvich were after- 
 wards to be divided ; and in the latter, the bankrupt had sold goods, and the defen- 
 dant was in possession of a bill of exchange given by the bankrupt ; that bill created 
 a certain debt, not a contingent one like tlie present. The case of Tcussaint v. Mar- 
 tinnant only decided that a.Mtimpsit would not lie, not that an action on the bond 
 might have been supported. Martin v. Court was an action on an absolute bond 
 wliich was proveable under the commission : there the counter-bond was made 
 payable before the principal bond ; and Biiller, J. observed on it that it was the in- 
 tention of the parties that the surety should have the money in his hands before he 
 shoidd be called upon. But here the defendant is not entitled to set-off', because 
 the debt was not onl}' uncertain at the time of the bankruptcy, but there was a 
 lime Avhen, if the action had been brought by the assignees, the counter-demand 
 by tlie defendant did not exist ; and the set-off' ought not to arise by matter ex post 
 f.tcto. But even if the debt from tlie banki'upt to the defendant were certain, still 
 there was no mutual credit between them. This action is brought against the de- 
 fendant, as a surviving p^artner, for goods sold to him and G. Lochhart : the defen- 
 dant therefore cannot set-off'a debt due to himself alone to a debt due from him and 
 another person. Only those debts, wliich exist between the same parties and in 
 tlie same right, can be set-off". Here credit was only given, on the one side, to the 
 bankrupt by the defendant alone, and on the other by the bankrupt to the defen- 
 dant and another person. As to the sjjecial pleas ; there is one objection applica- 
 ble to them both. It is stated that the two bonds were g-iven by the defendant as 
 a siirety, and that the counter-bond was given by the bankrupt to the defendant 
 to indemnify him : but that agreement cannot be considered as incorporated in the
 
 APPENDIX. .3 
 
 bond, because that would be to defeat the bond by an agreement of less solemnity 
 than ti.e bond itself; and if not, tiie a^ieenient is void tur want <;f a coiisidciuiion ; 
 it was nui.um pactum. And even if il eould be considered as part of tlie bond, il is 
 objectionable on another ground, tliat it was given as a security not for any baluncc 
 then due, but for a tioating' balunce to arise on an account not then in existence. 
 
 Lord Ken vox, Ch. J. Some of tlie arg-uments uijjed at tlie bar g-o bejund the 
 question now tor decision ; there being' one short gu'ouud, on which we cainiot be 
 mistaken, in saying- that the case is in tavour of the defendant. '1 Ids is an action for 
 goods sold and delivered by the bankrupt to the delendant; and the (question is 
 whether the plaintiiis, wlio are tiie assignees of tiie bankrupt, have a rig-lit, under 
 all the cu'cunistances of the case, to exact payment for tlie g'oods. Tlie defendant 
 had various transactions witli the bankrupt ; among otliers, lie became sccurit) for 
 him in two sevend sums of money; and at the time of becoming such securit} the 
 latter engaged that the defendant should not be called upon to pay for the gocul.s 
 until he was indemnified againstthi.se bonds. Tliat agreeinenl liaviiig been jjroved, 
 I see no objection to it in point of law ; 1 tiiink it is a good defence to this action 
 under the general issue, and tliat the defendant need not lia\ c pleaded it specially. 
 The conse(juencc is that the plaintiffs have brouglil this action to enforce payment 
 of a sum of money, wliich the defendant is not bound ellher in law or conscience to 
 pay under tiiese circumstances. 
 
 AsuHURSr, J. This case falls within the statue 5 Geo. II. c. 30. s. 28, which 
 enacts that, where there have been either mutual credits or mutual debts bet\seen 
 the bankrupt and any other pel. son, before the bankruptcy, the commissioners shall 
 state the account between them, and one debt may be set-ofl against another ; and 
 what shall appear to be due on either side on the balance of such account, and no 
 more, shall be claimed. But it lias been contended that the agreement in this case 
 must be so restrained in its construction that the defeiuhmtis not entitled to retain 
 any money that he should p;iy, under the surety-bc^nds, after the bankruptcy. Th« 
 intention of the (larties, however, in making this contract was that the defendant 
 should not pay for the goods until he was indemuitied against any payment lie 
 should make upon either of tiie bonds ; he had a security depcjsiteil iii his hands ; 
 and thougii, in fact, he was notdamnihcd until after the baiiki-uptcy, yet the pay- 
 ment under this agreement has a retrospect to, and must be considireil as Lf made 
 before, the bankruptcy. It is true that, generally speaking, a creditor of the bank- 
 rupt cannot prove any debt under the commission that does not become due before 
 the bankruptcy; but this agreement and bond take this case out of the general 
 I'ule ; and though the defendant was not called ujion to ])ay either of the bonds, 
 which he had executed as surety for the baukrujit, until after tiie bankruptcy, yet 
 he may have recoui'se to a secmuty which has a retrospect to a time antecedent to 
 tlie bankruptcy. 
 
 Bl 1 i.EK, J. I agree witli the plaintiffs' counsel that there is no case in which it 
 has been held tliat, where it depends on some future event which does not take 
 place until after tlie bankruptcy whetiier or not tiiere will be any debt against the 
 bankrupt, the debt can either be proved under the comnussion, or set-oH against a 
 demantl made by the assignees. But tliat is not like tiie present case. The (jues- 
 tion here arises not on the set-ofl", but on the plainlifls' demand ; and it must be 
 considered in tlie same light as an action brought b} tiie assignees to recover goods 
 sold by the bankrupt, he having given a day of payment ; if goods be sold, and 
 twelve months' credit be given by tlie siller, be cannot maintain an aciion until 
 that time be e.\pired. Now in this case the goods were solil on tlie express condi- 
 tion that the defendant should not pay for them till the bonds were discharged by 
 the bankrupt; those bonds were not discharged by him, but the defendant was 
 obliged to satisfy them, and therefore the plaintiffs cimnot maintain their action} 
 for according to the terms of the original contract they have no cause of action. It 
 has been argued however that the defendant could not, by virtue of this agree- 
 ment, have a lieiKjn a floating balance ; whatever may be the general rule res|)eet- 
 ing such alien where there is no agreement, there is no reascin why the parties 
 may not by express agreement make a lieu on a floating balance ; and here tiiey 
 fiavc done so. 
 
 Gkose, J. I am sorry to sec such an action as this brouglit by tlie assignees of a 
 bankrupt in a case where it is impossible to <loubt about the justice of the cast', 
 even Uiough there were any doubt alioui. the law lespccting it. Hut I think tU»t
 
 4 APPENDIX. 
 
 the plalntiflTs' clemrmcl is as clearly ai^ainst law as It \s against conscience. This 
 question does not depend on tlie statutes of set-otl', but on the orighial agreement 
 between the parties, which (I think) entitles the defendant to a verdict under the 
 general issue. To an action for goods sold by the bankrupt the defendant answers 
 that he is not liable to pay because before the sale he had become a smety in two 
 bonds for the bankrupt who, in order to indemnify the defendant, engaged that he 
 shoiJd retain any money that should be due from him to the bankrupt, in respect 
 of any dealings between them in trade, until those bonds should be satisHed, and 
 that he should retain out of such money whatever he should pay on those bonds ; 
 it appears that in fact he has paid asco-obligcc of these bonds more than the value 
 of the goods in question, and yet the assignees now insist that he shall pay for the 
 goods themselves. But on this state of the case no money is due under the agree- 
 ment ; and consequently tiie plamtilis are not entitled to recover. 
 
 Per Curiam. Judgment of nonsuit., 
 
 Sturdy and Another^ Assignees of Blakiston a Bankrujit, against Jrnaud, 
 K. B. E. T. 30 Geo. III. A. D. 1790. 3 Ter. Reji. 599. 
 
 D 
 
 ,EBT on a bond from the defendant to the banki'upt before his bankruptcy, 
 dated 27th September 1788, conelitioned for the payment of an annuity of 
 100/. by quM'terly ijayments by the defendant to the bi.nkrupt. The defendant 
 pleaded that at the time of commencing this action onh' four quarterly payments 
 •were due; that on the 29th September 1788, and before tills action was brought, 
 and also before the bankruptcy, the defendant had lent 200/. bearing interest, to the 
 bankrupt and another on their promissoiy note, payable on demand; that the bank- 
 rupt, before his banki-uptcy, agreed, and, by a writing under his hand of the same 
 date, authorised and empoirered the defendant to retain out of the annuity, as the same 
 should become due, the 200/. and mterest; which 200/. and the interest still re- 
 main due in arrear and unpaid, otlierwise than by retaining the same out of the an- 
 nuity so due ; and that the arrears of that annuity are still insufficient to satisfy the 
 same. The plaintiffs replied the bankruptcy of Blakiston after tlie above authority 
 given, and the assignment of his efiects to the plainlifts before either of the quar- 
 terly payments of the annuity became due. To tliis replication there was a de- 
 murrer and joinder in demurrer. 
 
 Holroyd was to have argued in support of the demiUTef ; but the Court desired 
 Shepherd, on the other side, to begin; who contended. First. That the defendant 
 had no right to retain the .arrears of this annuity against the debt due by him to 
 the banki-upt, on the ground that the agi-eemcnt operates as a defeasance, because 
 there can be no defe.a'sance to a deed by a mere writing not under seal. Blemer- 
 hasset v. Pierson, 3 Lev. 234. Secondly.'Neither could the defendant retain on the 
 ground of a lien ; for in all the cases where that defence has been allowed, some- 
 thing existed which was put into the hands of the creditor, as a bill of lading, a 
 policy of insurance, a bond, or the like ; but here nothing existed, wliich could be 
 deposited with the defendant. Tliirdly. Still less can this retainer be supported on 
 the ground of a set-off. The agreement was amere authority to retain the payments 
 of an annuity //they became due : but none of those pajonents were due at the 
 time of the bankruptcy, and it was contingent whether or not any would be- 
 come due, it depending on the defendant's life. This therefore was nothing; more 
 than a contingency which could not have been proved under the commission of 
 bankrupt; and consequently cannot be set-off. 
 
 Lord Kenyon, Ch. J. the doctrine of lien and of set-off bears no relation 
 to the question now before us ; and indeed I should be sorry for the plaintiffs them- 
 selves if the law were with them, since their conduct is so unconscientious that if 
 the defendant were to apply to a court of equity for relief, tliat court would not 
 only give such relief, but would also decree the plaintiffs to pay the costs both in 
 law and equity; on the same principle on which Sir Thomas Moore, wlicn Lord 
 Chancellor, proceeded when he first gave relief against the penalty of the bond, the 
 obligee In that case having paid the sum mentioned in the condition after, though 
 not on, the day. This is an action brought on a bond, which was made for secur- 
 ing the payment of an annuity at certain times In the year ; and before the time of 
 the first inst^ment the obligor lent to the obligee 200/. in order to secure the repay-
 
 APPENDIX. 5 
 
 ment of which he entered Into this agreement, stated in the plea, by which he 
 was authorised to retain the payments ot" the annuitv from time to time till the 200/. 
 and interest should be paid. But in answer to this it is said that these pajTnents 
 did not become due till after the bankruptcy of the oblig'ee, and that therefore they 
 cannot be retained against his assi_gnecs. Now injustice and conscience it is im- 
 possible to I'aise any doubt ; neither is there any doubt in point of law ; for the 
 condition of the bond has not been broken, and conseqviently no action can be main- 
 tained upon it. It cannot be said that the condition has been broken, when it ap- 
 pears that payment has been made according to the terms of it. For though this is 
 not a formal plea of soivit ad diem, yet it is equivalent to it. But it is said that 
 this cannot be so considered, because the assignees had a right to those payments 
 Avhich became due after the bankruptcy : but they have only that property to which 
 the banki-upt is entitled, and they must take ii subject to his equit} ; and here 
 those pajTnents were anticipated. 
 
 Ash HIRST, J. The defence stated in the plea does not contradict the an- 
 nuity bond ; on the contrary, it is perfectly consistent with it, and proceeds on the 
 supposition of there being such a bond. The plea affirms tlu- l)ond, anil specifies 
 the mjde by which the money lent to the obligee was to be repaid, namely, by re- 
 taining the pa}Tnents scciued by the annuity bond. And it was competent to the 
 bankrupt to enter into such an agreement before his bankruptcy. 
 
 BuLLER, J. This case does not want the assistance of an act of parli^nt, or 
 of a coui-t of equity. There is indeed an old case which said that payment before 
 the day woidd not discharge the bond. But, in the first place, that case has been 
 frequently over-ruled ; and if it were still law, it woiddnot govern tliis case ; be- 
 cause it has been held that the obligor may plead it as payment at the day, and 
 this woidd be e\idence of sucli pavment. 
 
 Grose, J. declared himself of tlie same opinion. 
 
 Judgment for the defcndant. 
 
 James v.Kynnier^ In Chan. J.D. 1799. 5 Vcs. Jim. 108. 
 
 IN 1789 Rice yames and Richard Beckford carrying on business in partnership in 
 Lon(U)u as merchants, borrowed 19,000/. on their joint and several bonds ; and 
 for further security assigned a mortgage upon an estate in Jamaica for 45,000/. — 
 Of the money borrowed 2,500/. was advanced by the house of Hutchinson, Ro- 
 bert and William Mure. 
 
 In May 1793, an agreement was entered into for the sale of fames' interest in 
 the partnership to Jamea IngHnh Keighley, for o0,500/. payable by instalments. 
 This agreement, though con.sented to at a meeting of tbe creditors, was not com- 
 pleted till 1797 ;wiien the deeds were executed, and the bonds of A c/y^^n/ and Keigh- 
 ley were exchanged for those of yames and Bedford, except the bond for tiie debt 
 of 2,500/. to tiie Mures ; but tlie money was deposited by Keighley at a banker's. 
 In October 1793, the Mures applying for jjayment of their bond, Bedford sSikl, it 
 was not then convenient ; upon which they requested that they might be accom- 
 modated with such sum of 2,500/. as a loan, to be repaid at a future period. — 
 Keighley ottered to lend part of the money deposited by him in pursiiance of the 
 agreement for the purchase of yames' share in tlie jjartncrship, if ynmes woidJ 
 consent. Robert Mure accordingly njjon the 21st of October wrote to yames ; sta- 
 ting their wajit of money, the application to Rcdfurd K.o\\\\i:\<.- them " by an ajijUi- 
 •• cation to Mr. Keighley to take up your <lebt to us secured uywn William Beci- 
 "ford\ esUte eitiur wholly, or to acconiniodatc us with the amount upon oiirc'ii- 
 " K'-^K^^K to repay it at a future j)criod : tiiis latter mode BrcJford to\d nic would be 
 most agreeahle to him ; and that he would mention it to Keighley." 
 
 This letter proceeded to statt; that Keighley had no other money disengaged but 
 what is lying at tlie banker's to be [)aid U> yames upon the signature ofthedee<ls ; 
 hut professes himself ready to accommodate tli<ni, provitled yames will give his 
 consent to his appropriating so mii<h of the moiuv to tliat pur[)()se. 
 
 Upon tliis letter yames came to London, and n i cived from Keighley 2..'i00/ 
 which he immediately, upon the 2Mi of October 17'JJ, delivered to the Munt : 
 and he received from them a promissory note for th:il anu)unt, payable to him tlircc 
 months after date. Upon the 31st of December 1793, tiic MurrS bv.c^mc buikyupt.
 
 6 APPENDIX. 
 
 Since 1793, th« interest upon the debt to the Mures was paid up to 17^7, by Beck' 
 ford and Kcighlty, or by Kti^ldey after the death of Bcckjord. 
 
 I'he bill was tiled by ^^'(i'ww ; prayinjj, that it may be declared tliatthe sum of 
 2,5001. paid bytiie plaintifi' to the Mures, was a payment or part p:iyment of the 
 debttlien owing to them from the plaintiff and Bedford ; or that the plaaitirt is en- 
 titled to have such payment set-ori' against such debt ; that an account may be 
 taken of wliat remains due after allowing such payment or sei-oli ; and that upon 
 payment ot'iiie balance by the plaintitti tlie assignees of the Mures njay be decreed 
 to deliver up the bond, and to assign their interest in the mortgage to the pUuuliif. 
 
 The bill stated, tliat as tbere remained an unsettled account respecting tiie in- 
 terest of the said debt of 2,500/. no hnal discharge was given to the plamliii upon 
 his paying over the money to the Mures ; and therefore by way of acknowledg- 
 ment for the receipt of that sum he received their promissory note ; by means 
 ■whereof the principal debt was paid off ; and nothing Remained ownig in respect 
 gf the said debt except some small sum for interest at that time owing. 
 
 Tlie defendants, the assignees, by their answer stated, that they believe, the 
 Mures at the time of the application to Beckford intended, that the money, winch 
 should be advanced in consequence, should be in discharge of the debt due to 
 them ; but tliat the plaintiff advanced the same as a distinct loan from himself to 
 them, and took a note accordingly ; and for that reason, not for that in the bill 
 mentioned, no final discharge w.«y given upon that occasion for the debt of 2,500/. 
 due from Bedford a.nd jfaities ; and tliat ever since May 1793, Keigldey has not only 
 been understood to be the debtor instead of the plaintiff to all the creditors of the 
 house, but lias actually been in possession jointly with Beckford of the ellects of 
 tlie paraiersnip. 
 
 The defendants therefore insisted that the plaintiff ought not to be considered 
 as interested in the said debt of 2,500/. as surviving partner of Beckford ; and as as- 
 signees of the Mures they claim the whole debt; contending, that tiie advancement 
 of tliat money to the bankrupts was no payment or part payment of the debt ; and 
 the plaintiff is entitled only to prove that sum under the commission. 
 
 The book-keeper of the partnership by his dep sitions stated, that the bond to 
 the Mures had not been exchanged, because Keighley did not know who had a 
 right to it. He also stated, that the instalments of the purchase -money for the sale 
 of the plaintiff's share were paid by Beckford and Keighley out of the funds arising 
 from the property of the late house of Beckford and James and monies provided by 
 Keighley. 
 
 The Attorney General, Mr. Mansfield, and Mr. Steele for the plaintiff, after men- 
 tioning Ex parte ^dntin (a), French v. Fenn (/>), Ex parte Frescot {c), and Lord 
 Xen tioii's opummin Smith v. Hodson (d) in support of the conclusion, that to sustain 
 a set-off in equity thei-e need not be strictly mutual debts, where there is clear 
 mutual credit, (e) were stopped by the Court. 
 
 Lord Chancellor. Is there any doubt, that, where there are upon account 
 mutual credits between two parties, though they cannot set-off at law, yet it is the 
 common ground of a bill ? If yanies had brought an action against Alure upon the 
 note supposing no bankruptcy liad taken place, 1 should have stopped that action, 
 while he was debtor upon the bond. When there comes a case of bankruptcy, it is 
 much stronger. Between solvent persons, there might be a ground to say, Indul- 
 gence was given, the credit extended ; and therefore that credit ought to be con- 
 tinued. But the moment a banki-uptcy comes the account is to be settled. They 
 miglit sue Bedford's executors at law : but I should stop the action. Therefore 
 there is a clear mutual credit. 
 
 The Solicitor General, Mr. Cox, and Mr. Mure for the defendants. — It Is unneces- 
 sary to controvert, that your Lordship would allow an equitable set-off, if there 
 were either mutual debts or mutual credits : but this is a case neither of mutual 
 debts nor mutual credits in equity. This debt was one of those, which by the 
 agreement in 1793 Keighley, took upon himself The plaintiff was from that mo- 
 ment completely released ; though his name remained upon the bond. The debt 
 was wholly transferred. Though the bond was not exchanged, the agreement 
 
 (a) Ante, vol. 3. 248. (b) 1 CooPs Bank. Laiv, 569 (c) 1 Ati. 231. 
 
 (d) 4 Term Rep. B. jR.2il. (e) See more authorities coWcciQdl Cook's Ba.'iL 
 Lav), 568.
 
 APPENDIX. 7 
 
 ie"stende(l to this debt as well as the rest ; and after that agreement your Lordship 
 would nol have permitted yames to be sued. He was therct'orc a mere strai'ger 
 as to th;it bond at tlie time oi' tlie tr:msaction of the note. Then the Mures :.pply 
 for payment, not to yavits, but to •Bccljord and Ktighley. Tlie case first attempted 
 by tlie bill was, that the money was paid in the discharge of the bond. That is now 
 given up ; and it is admitted that another arrant,^enunt took place. The proposi- 
 tion was, that Keighlry, not James, should advance the money; and the (|nestion 
 was, whether KeighU-y should be authorised for that accommodation to use tlie sum 
 which he had deposited for the pvuxhasc of j^amts' share. If that transaction had 
 taken place, and Kcighky had, instead of makinfj the ]iayment, taken a note, all 
 this equity woidd have arisen between him and the Murts ; upon this ground, 
 that upon the consideration that he was liound to pay the bond, he ag^ieed to pay 
 the money. But what was done was not in pursuance of that ; for the plaintiff 
 thoug-ht fit to take up part of that sum from Kdg/ilty's banker. That became liis 
 money ; and he chose to lend it to the Mures for their accommodation. In wliat 
 sense' is the plaintilf indebted to the Mures? Whatever was tlie consideration, 
 that did not make a mutual credit. In French v. Feiui there were direct nnitual 
 credits between two persons tiiemselves. In Ex parte l^tintin all your Lordship 
 did was to get over the point of form. There could not liave been a set-ofl' at law ; 
 but the partner, v. ho would have been entitled to a moiety of the clear surplus, 
 was himself debtor individually to the petitioners. There were clear mutual debts ; 
 and the only difhculty was as to the form of the action at law. But it is not upon 
 anv difliculty of that" kind that we rest, but that after the purchase of yuvics'm- 
 terest there was no mutual debt or credit between yavies and Mure, but only lie- 
 twecn Ktighley U-wd Mure ; m\(\\\\va.\. ycmies did was only for the accommodation 
 of his former partnership, himself not bein,^ liable, or even asked for pa\ ment- 
 They only desired him to permit Keighley to lend so much of tliat money; but he 
 savs, he will iiimself do it. 
 
 Lord Chancellor. I have not a particle of doubt upon this case; whicli i.s 
 the clearest I ever heard. It mig-ht have been matter of consideration, wliether 
 the bill should be filed by Keighley or James; and I rather think the e(|uity of tlie 
 former the more preg-nant and obvious, f()r with tlie knowledg-e of the Mureshi- lias 
 paid part of the consideration, for \\ hich, he was to make himself liable to the debts, 
 throug'h the medium of James. Giving' up the bond -will put an end to the suit 
 compietelx- ; and I may as w( 11 make the declaration upon tliis bill as any other. 
 
 At the time of tliis transaction tiie Mures had not accejited Keighley, nor g-iven up 
 that particular bond. The transaction of the change of die jiai tnersliip was not 
 then a completed transaction. Under these circumstanceu Kiighley going- on with 
 the purchase had money applicable to the settlement of that transaction, wiien the 
 business could be finished. The aj/plication was made to James, that he would 
 ag^rec, that money should y;o to the relief of the Mures, creditors of the partnersliip. 
 The mode, in which he does it, is by taking- this note. The ti-;.nsaclion going- on 
 between Keighley and him, I never wuuld let him jn-oceed upf.n that note. The 
 fact is beyond a doubt, that the partnership eflic'cts of Beckford and James have paid 
 this debt to the Mures. The decree must be accoi<ling^ to the pia\er of the bill, 
 without costs ; I cannot make the assignees pay costs. The plaintifl niust pay the 
 defendant Keighley his costs. If any thing- is due to the plaintiif, he must come 
 in as a creditor. The note must be deli\cied up. 
 
 Tlirustout vn the Demise of Barnes v. Crofter. C. P. T. T. 1 2 Geo. 111. 
 2 Blacks. Jie/i. 826. 
 
 B 
 
 ARNES, the lessor of the plaintifl', ha<l a judgni( nt last Miihaelinas tctm, f(U- 
 
 • 401. 5s. Hg-ainst the defendant, for his debt and costs, on an action, for the nsr 
 
 jiiid occu[>ation of the premises ; but was n(»n-suited in the jjresi-iit cause, the Hil- 
 ary icrm a<t( rwards ; tlie costs of which are taxed at 12/. 5s. for non-payment of I 
 which, an attaclmient is taken out against tlie plaintill. 
 
 Now .Vrtjo for tlic plaintifl nio\(<l,that tlu- 12/. 5s. mi^lit be deducted out of the 
 Af)l. 5s. and proreedings, on the attac hment, be sta\ed. 
 
 Walker shewed for cause, that it wa.s a new attempt, to set-ofl' nnitnal d.l'ti. due 
 •n jud^mtm. That the statute relates only to inuluid debts at tlic lime ol tna',
 
 8 APPENDIX. 
 
 ♦ 
 
 upon an action of debt, or in such a case, wherein action of debt would He. But 
 this is an application to stop the execution of the law. There is also a difierence 
 in the nature of the executions themselves. One for debt as well as costs, for 
 •which an action would lie on the judgment; the other for costs only, to be reco- 
 vered by process of contempt. 
 
 Sayer, in support of the rule, cited Tulo and Lowe, 16 Geo. II. 1 Barn. 102. — 
 Scoffin and Robinson, 26 Geo. II. 2 Barn. 128, a rule, for deducting costs of one 
 verdict, from those of another. And, if the court will sct-ofi' costs at common 
 law ; a fortiori, they will do it under a rule for judgment as in case of non-suit. — 
 Also' Roberts and Figgs, 28 Geo. II. 2 Barn. Sufpl. 12. And Roberts and Macoul, 
 Trin 9 Geo. III. a rule to shew cause, why tliirteen griineas costs, taxed against 
 the plaintiff in a former cause, should not be set-off against sixteen gmneas co.sts, 
 recovered against the defendant in this cause. It was shewn for cause, that the 
 plaintiff was insolvent; and, that his attorney had a lien upon these costs for his 
 bill. But it was held, by TVilmot chief justice et Cur. that the attorney's lien was, 
 only upon what the plaintiff was entitled to have, viz. the difference. 
 
 And, by De Grev cliief justice, Gould, Blackstone, and Nares, justices, the cases 
 cited have settled the point ; and on the justest ground.— Rule absolute. 
 
 Barker adminstratnx v. Bruham, C. P. H. T. 13 Geo. III. 2 Blacks. 869. 
 
 iS'. C. 3 Wils. 396. 
 
 THERE being due to the defendant Braham 102/. 18.?. \d. from the plantlff as 
 administratrix of her husband, on the judgment recovered in the King^ Bench 
 in Hil. 1769, (as stated in the preceding case) the plaintiff, in the same right as ad- 
 jninistratrix, brought this action against Braham in this com-t for a debt due to the 
 intestate, and had a verdict for 106/. 9*. 6d. last Trinity term, and judgment there- 
 upon. Now in last Michaelmas term, Sayer for the defendant moved, that the said 
 102/. 18.y. Id. might be deducted out of "tlie 106/. 9*. 6^. and on payment of the 
 balance to the plaintiff with costs, execution might be stayed. 
 
 Bavy and Burland were prepared to shew cause ; but having informed the court, 
 that there was a WTit of error then pending in the Exchequer Chamber, on Uie 
 suit Braham and Barker administratrix in the King's Bench (which was sworn not 
 to be brought for delay, but upon real error) the court enlarged the mle till the 
 second Mondav in this term. 
 
 In the mean time tlie defendant Braham (having discovered the error in the re- 
 cord of the couit of King's Bench) had leave to amend, whereupon that judgment 
 was affirmed. 
 
 And now it was shewni for cause agamst the present i-ule, that it was anew at- 
 tempt, and went beyond the statute, which only allows a set-off to be pleaded or 
 given in evidence onthetr/a/; but does notallowonejudgmentto be set-off against 
 another. And that in the present case, it might possibly entangle the plamtiff m 
 a devastavit, as there may be debts of a higher nature than this judgment. Besides, 
 the former judgment being given in the court of King's Bench, this court can take 
 no cognizance'of it ; for a question may arise in that court, whether Braham's 
 wliole debt was not satisfied, by the ca. sa. (though illegal) which she there sued 
 out against Barker. 
 
 Saver and Gly?i in support of the rale, insisted, that this would have been allow- 
 ed had the intestate been living ; and the same rule will hold for the administra- 
 trix.— That there is no reason to preclude this motion now, because the debt was 
 not pleaded or set-off at the trial. In Thrustout on the demise of Barnes and Crafter m 
 this court last Trinity term, the costs of one judgment of non-suit m this court 
 were ordered to be deducted out of the debt and costs of another judgment— and 
 this court will also take notice of judgments in other com-ts, as by staying proceed- 
 ings in eiectmer.t here, till costs of nonsuit in' ejectment in the King's Bench, arc 
 paid. Nor can there be anv devastavit; for this money, if stopped by the com-t will 
 never come to 5 flrier'.? hands. And it is impossible to suppose, that any court 
 can determine, that a taking on a void ca. sa. is satisfaction of the debt. 
 
 Be Grey, chiei'justlce. This case is singularlv circumstanced. Each party is en- 
 titled to an exec\ition against the other. The question is, whether tins court ^vlU
 
 APPEXDIX. 9 
 
 narrow the plslntiflT's execution here, because she is liable to tlie defendant's ex- 
 ecution for a less sum in unotlier court. 
 
 The cununon law was very nan-ow in its principles with respect to stoppag'e or 
 set-otls : very dirtcrent from the J'onian law of compensation, wliich proceecleil on a 
 more liberal plan. This our courts of equity adopted, made just allowances to 
 each side, and struck the balance, ^fj's and WcjoJ 2 IFms. 128. But tlicre was 
 not any Icijal interposition of tliis kind, till the barikrupt laws, 4 Si 5 Ann. 5 Geo. 1. 
 and 5 Gio. 2. 
 
 The statute 2 Gsn. 2. allowed set-ofT to be ])leaded or given in evidence at the 
 trial. In tlic constructitJiiof this statute, l.oid Hard'xickc, Chief Justice, dlflired 
 from Eyre, Chief Justice, with reg-ard to setlinsj-olf debts of superior nature against 
 inferior, and vice vctsa. Tliis occasioned the stat. 8 Geo. 2. 
 
 The courts have g-one a little furtlier tiian the letter of tlie statutes, by the rule 
 of anulogv, in cases witliin their ]3ower. Costs have been long set-off against costs \ 
 
 and in Barnes and Crofter the court allowed costs to be set-oO' against i/fZ)? and 
 
 cotts. The present case goes a step fai-thcr ; it is an application to us to restrain and 
 narro'iu our own ))rocess i?f execution, by tlic same ecjuitable rule. Doubtless this 
 judgment in the King^s Bench might ha^■e been pleaded or given in evidence. But 
 that is no reason why we should not allow it now ; and no miscliief can follow 
 from allowing it. ^o de'castaiit cun happen, unless tlie plaintilfi?(;r/'er knows of 
 any superior debt ; and, if she knows it, she might disclose it and siiew it for 
 cause. Tiie same answer may be given to the strange supposition of the debt's be- 
 ing sati.sfied, by executing a void ca. sa. for which Barker has been amply repaid 
 in damages. If it has been so determined, siie might have shewn that for cause. 
 I am theicfore for allowing tlie present motion ; but dosire it may be remember- 
 ed that this is a case of one judginent against another, both in the same riglit ; and 
 nvist be distinguished from setting-off private debts, not in suit, and upon whicli 
 r.o judgment has been obtained. 
 
 Could, Justice of the same opinion. 
 
 5/r7c-^j<o/!t', justice concurred. The courts have been gradually extending this 
 eouitable remedy. In the out-set of a suit they compel the plaintiil to make a set- 
 ofl' in the afFiduvit to hold to bail, and will not suflerhim to swear to one side only 
 of the account. So in costs at tlie close of the suit, the same reason and tlie sam6 
 analog\^ extend to set-ofl' mutual judgments, and tliereby narrow the greater exe- 
 cutii)!!, in whatever court it liappens to be. 
 
 Nares, Justice of the same opinion. There can be no clashing of jurisdictions in 
 this case, for we do not meddle witli the process of any court but our own. 
 
 Ride absolute. 
 
 Cloister v, HcKvcr, and dvo Oi/icrs. M. T. r,9 Geo. III. 8 Tcr. Riju 69. 
 
 THE plaintiff brought an action of trover against the defendants, whosufTcrod 
 judgment to go by default, and on executing a writ of enquuy the jury gavt; 
 40/. damages. After\vards tlie defendants sued the plaintift", and recovered 
 36/ 13o". 6J." Whereupon tlie defendants obtained a rule, calling on the plaintiff 
 to shew cause wliy tlie proceedings in tin- former action should not be stayed on 
 the defendant's undertaking to deduct and allow to the ]jlalntiH'40/. the amount of 
 the damages recovered by him, and the costs wlien they should be ascertained by 
 tlie Mcster, by entering a remittitur for the amount of sucli damages on the re- 
 . ord in the action brought i^y the defendants, m\ an aiVidavit lliat the svim of .'>(>/. 
 13*. 6r/. (tlie damages recovered by tlie defendants) togetlier with the costs of Uie 
 '..Iter action which had not yet been la\e«l would, when taxed, considerably cx- 
 <ecd the damages and copts recovered bv the plaintiff aguinsl them. 
 
 Gibis and Park now sliewed cause against that rule. 1st. At all events the rule 
 is too general, berause tlie plain.ill 's aiioiney lias a lien ontlie judgment recovered 
 by him for hiscoi.ts, which ought not to be distiulud in a dispme l»etw<en t)ie 
 ..arties. (/.rtu', who was on the other side, admitted that thi:) rule must be snb- 
 'ectto the attoru-y's lien.) 2dly. The defendants are not entitled to bet-ofi'theirjudg- 
 in-,uit against tli-t'v.hich th<- plaintlfi' recovered ag:t;i>-.t them, b^'ainie tbi; ;)luliitiM:
 
 10 APPENDIX. 
 
 bas aiioUic-r deinaiul atjainst Ilcver one of tiu- ilcft'M(iaiitH.(</) In the case of 
 Mitchfl \. 0!'ljield,{b) \\]ii~:rit tlie plaintililiad rccuvcred a jiulg-ment ag'ainst tlie 
 Jcfciulant, the courl ])ermiltetl tlif latter to set-off ajiulgnient wlilch lie had re- 
 covered ag-ainst the \i\-\m\\\Y and another perxon against the judgment olitained against 
 him. Then by a parity of reason, as the plaintilf has a separate demand against 
 one of the defendants in this case, it will be unjust that the defendants should set- 
 off their judgment against tliat recovered by tlie plaintiff without also taking this 
 second deinanil into the account. This is an application to t'le et^uitable jurisdiction 
 of tlie court, who will tb.crefure be guided by the nde that is adopted in a court 
 of equity, that he who asks equity must do equity. But 
 
 Tlie court thought that this would be canylng the rule too far ; for that the ef- 
 fect of discharging tills rule would be to subject the two other defendants to the 
 l)ayment of a separate debt of Hcvct/: 
 
 Rule absolute. (f) 
 
 O'Connor v. Mnr/Jnj, T. T. 31 Geo. III. A. i:>. 1751. 1 Hen. Blacks. 657. 
 
 A RULE was obtained by Adair, Serj. to sliew cause why the costs ofa non- 
 suit in an action (t trover, brought by Murphy, the present defendant, against 
 one O' Lough/in, should not be set-off against tlie costs of a nonsuit In this cause ; 
 it ajipearcd that the action of trover had been brought for a ship claimed by 
 Miirphv, but which proved to be the joint property of 0'Co«?;or the present plain- 
 tliri and one O'SuHiTan, (who were partners In trade) and of which U" LmighUn 
 was the master. The present action was brought by O'Connor as indorsee of a 
 
 iii'omissorv note against Murphy as drawer. In which O'Connor was nonsuited : and 
 le now- made this application, upon the gi-oimd, that the action ag-alnst O' Lovvhllr. 
 was defended at the joint e:\pense C)i O'Connor and O' Sullivan, and that O'SuUiran 
 was interested together with O'Connor in the promissory note, on which the present 
 action was brought, Map.suali., Serj. shewed casise ; he said the coiu'ts had In 
 several Instances {d) after the statute of set-off, refused to allow the costs of one 
 action to be set-off against those of another ; and the reason then given was, that It 
 required the assistance of an act of jiarliament to enable the defendant in action to 
 set-off a mutual debt, and that act did not extend to the case of costs. Afterwards, 
 however, by a sort of equitable Interpretation of the statute, the court allowed tlie 
 costs of cross actions to be setagaist each other. But they had never allowed this 
 to be done, whei-e the costs w'cre not mutual debts, and for the recovery of which 
 there were not mutuaJ i-emcdies : for, had they gone beyond that, thev would 
 have extended tliis equitable construction of the statute furtlicr in a case for which 
 it was evidently not intended than in tiu)se cases fi;r which It was expressly made. 
 As G" Sullivan did not join In the action on the promissory note, he ought not now 
 to be permitted to say that he was interested in It merely to en.title himself to thr 
 benefit of a set-off"; and as Murphy had a remedy only against O'Connor for the costs 
 of the present nonsuit, those, costs were a debt due from O'Connor alone, and not 
 jointly from O'Connor and O' Sullivan. Therefore, supposing the costs of the action 
 of trover coidd be taken as a debt due from Murphy to O'Connor and O Sullivan 
 jointly, yet even then the costs of tlie two nonsuits could not be deemed mutual 
 debts. This he said distinguished this case from Nunez v. Modigliani, ante 217, 
 and Schoole v. Noble, ante 23. Besides, Murphy could not bring an action against 
 O'Connor and O' Sullivan \o\vAy for the costs of the present nonsuit, neither could 
 any person but O" Loughlin sue Murphy hv the costs of the former one. Tlie costs 
 therefore of the two nonsuits could not by any means be taken to be mutual debts. 
 The cases of Paynter v. Walien, C. B. East'A. Geo. Ill Bull. N. P. 179. Pyal v. 
 Larkin, 1 Wils. 155, and jRidoutv. Brough, Covcp. 133, shev.- that under the statutes 
 of set-off, where the defendant has an equitable claim on the plaintiff^ however 
 
 (a) It appeared in an affidavit produced on shewing cause that Hev^er, one of the 
 defendants, was indebted to the iilaiiitlfl" in 67/. on two promissory notes cb-awn by 
 Hevoer, one payable to the plaintifii and the other to Smith and Co. or order, and by 
 them Indorsed to the plaintiff. 
 
 (6) Ante, 4 vol. 123. 
 
 (c) Subject to the lien of the plaintiff's attorney ; and it was referred to the 
 Master to see what was the extent of that lien. 
 
 {d) 2 St. 1203.
 
 APPENDIX. 11 
 
 cJear and just ; }'et if an action vill not lie for it, at tlie suit of the defendant alone, 
 and //.' his o^cn right, it caiuiot be deemed a mutual debt, and therefore cannot be 
 
 set-ofl'.(<^) 
 
 Lord Loughborough stopped Adair, who was proing' to reply, and said, that 
 •without any rcg-ard to 0'5»///t'a«'i interest in the promissory note, O'Connor was 
 equitably entitled to the costs of the nonsuit in the action of trover ag-ainst 
 O'L'jugh'Hn, and therefore he oup,-ht to be permitted to set them oft', as far as they 
 would g'o, against the costs in the present actioii. 
 
 Rule absolute. 
 
 Schooley. Mble, Lett, and Byrne. T. T. 28 Geo. III. J. D. 1788. 1 Hen. 
 
 Blacks. 23. 
 
 THE plaintifi'broucfht trespass ag^ainstthc defendants for breaking and entering 
 his house, Sec. Defendants Lett and Bynw had suftered judg-ment to go by 
 default, yoble went on to trial, and obtained a verdict. Damages were assessed 
 against Lett wnil Byrne atone halfpenny each. On which, Run.vixgtox, Serj. 
 obtained a rule to shew cause wliy the costs which might be taxed against Lett and 
 Bvrne on the judgment by defudtj and the damages assessed, shf.-uld not be diduet- 
 ed out of tlie' costs taxed to Noble on the postea, and allowed to the plaintifls, and 
 in the mean time execution against th<-m stayed. 
 
 This was moved on an aftidavit, stating tliat the defendants Lett awA Byrne had 
 acted under the authoritj of Noble, wlio'liad undertaken to pay the damages and 
 costs. 
 
 Boxn, Serj. against the rule, said that this was a new application, and against 
 iustice, in as much as it tended to deprive the attorney of thai lien on the costs, to 
 which he was legallv intitled. But 
 
 The coiu-t licld that the attorney could only have such a lien on the costs as wa>; 
 subject to the equitable claims of the parties'in the cause, and therL-fore maile the 
 
 Rule absolute. 
 
 Vaughan v. Daxnes. 2 Hen. Blacks. 440. //. T. 35 Geo. III. A. D. 1795. 
 
 THE plaintiff" recovered a verdict for 200/. against the defendant in an action of 
 trespass for taking his goods, and tlie defendant had previously obtained 
 judgment against the plaintift", on a bond for 2000/. wlu) was surnndered in execu- 
 tion of that judgment. And now on the motion of Bo xd, Serj. a rule was granted 
 lo shew cau.se, why it should not be referred to tlu- ]n-otlionotary to take an account 
 of the damages recovered on the verdict ol)lained by tlie plaintiff, and tax his costs 
 thereon, and whv the defendant should not be discharged frcnn the payment of such 
 damages and costs, wlien so ascertained and taxed, upon his entering satisfaction 
 for the amount thereof on the judgment recovered by him, in i)art discharge of that 
 judgment. 2 Blacks. 826. Thrustout v. Crafter, ante vol. 1. 23. Schoolev. Noble, 217- 
 Nunez V. Modigliani, 657. O'Connor v. Murphy. . .rp «. 
 
 Ad.\ir Serj. shewed cause, on the part of the attorney for the plaintiff, on .affi- 
 davits, stating that he had no fund to resort to but tlie sum recovered i)y the plaint ift 
 for the pannentof his bill, tlie plaintift'himself being insolvent, tlie set-off therefore 
 ought not' to be allowed, till the attorney's l)ill was satisfied. He said tliat \he: 
 court would protect an attorney w!io ^^'as their officer, wlio would <)tiierwise be 
 without remedy, and tliat in tlie'court of King's Bench tlie etiuilable right of setting; 
 off* the sum recovered in one action against that recovered in another, was always 
 subject to the attorney's lien for iiis bill, for which he cited Mitchell v. OUlfield, 4 
 Term Rep. B. R. 123. and Morelnmls. Lashley, B. R. Trin. 34 Geo. III. But 
 
 On this day, after consideration, the court said that the attorney's lien did not 
 extend to prevent the parties in the cause fnun having the bene lit of the set-oil 
 wliich was applied for in this cxse, and theref«»re mudc tiie 
 
 Rule absolute. 
 
 BuLi.En, J. mentioned th.at a similar decision had taken i^Iace this term in iho 
 court of Chancery, in a case of Barton v. Etherington. 
 
 (rt) But sec those ca«os, and qu. whether they support this pniposilion in its fa 
 extent.
 
 12 APPENDIX. 
 
 Morland and Ilammersley v. JM^kley. Eame v. Lashlcy and Ux. T. T. 54 
 Geo. III. 2 ilen. Blacks. 441. 
 
 BOTH tliese ca\ises were tried at the sitting's Tr. 24 Geo. III. TIic first was an 
 action upon the separate bond of" the defendant ; the second upon the joint 
 bond of the defendant and his wife. In tlie first, the plaintiff obtained a verdict, 
 and in the second was nonsuited. In the same lerin, Haidtrson, on the part of the 
 plaintifli obtained a rule to siiew cause why the costs f)f the nonsuit should not be 
 deducted from the sum given by tlie verdict in the first cause. 
 
 Pahner shewed cause, contending- on tlie authority of 7T//;cAe// v. OUIficld, 4 Term 
 Eep. B. JR. 123, that the attorney for the defendants had a lien on the judgment for 
 his costs. In support of the rule Henderson cited Barker v. Braham, 3 Wlls. 396, 
 and attempted to distinguish the present case fi-oni Mitchell y. O'.df.cld, because 
 there were different attornies in the differerit causes in that case, but here the al- 
 toiTiey was the same in both. But 
 
 Loi-d Kexvox said that circumstance made no difference between the rases, and 
 as to the case in IViUon, it did not there appear that any application was made on 
 the part of the attorney. That an attorney had a lien on the jud.^ent for his 
 costs, which it would be unjust in the court to take from him. The ride therefore 
 was made absolute, with a reservation of the attorney's lien. But as \>\- costs were 
 equal to the costs of the nonsuit, the rule was afterwards abandoned. (^) 
 
 Dmnie v. Elliott, Hill, and another. M. T. 35 Ceo. III. 2 Ken. Black';. 
 
 587. J. D. 1795. 
 
 IN this case a rtile was granted to shew cause why execution for tlie damages and 
 costs recovered by the plaint! H^in this cause, amounting- to the sumof 52/. should 
 not be stayed, the defendant HUl undertaking to stay all proceedings on the judg- 
 ment by him obtained in another action brought bv the plaintiff', wherein Hill had 
 his costs taxed at tlie sum of 43/. 19*. 3d. and also undertakin.c;' to pay to tlie plain- 
 tiff or his attorney the sum of 8/. 9d. being the balance due to tlie plaintifl', after 
 setting-off the costs so due to the defendant Hill from the plaintiff, on an affidavit 
 by Hill, that the plaintiff aiD]ieared to be insolvent, that his goods were all distrain- 
 ed for rent, and that he himself was not to he met with. 
 
 In opposition to the rule, Le Blanc, Serjeant, produced an affidavit of tlie plain- 
 tiff, stating that Hill ha.d told him that Elliot, one of the ether defendants, was to 
 indemnify Hill, as having acted under his orders, and that the plaintiff had ofiered 
 not to takeout execution against /////. The attoi-ney fur tlie plaintiff alio made an 
 affidavit that he had no security for his costs, which the plaintlfll was unable to pav, 
 and which he verily believed he should lose, if the set-off were allov.-cd, as he had 
 no chance of recovering- them, but out of tlie damages and costs to be received un- 
 der the judgment for the plaintiff. 
 
 Le Blanc also relied on the practice of th.e court of King's Bench, and cited 
 Mitchell \. OUipid, 4 Term Rep. B. R. 123, and Randle v. Fuller, 6 Term Rep. 
 B. R. 456. 
 
 In support of the rule, B,jnd, serjeant, insisted on tl.e knov.n prrctice in this 
 court, that the attorney's lien for liis costs was subject to tlie equitable claims of 
 the parties In the cause, which he said was settled in the cases of Schoolew Noble, 
 ante vol. 1. 23 ; Nunez v. Modi^licini, 217 ; O'Connor v. 3Iurphy, 657 ; t.nd Vaugltan 
 V. Davies, vol. 2. 4'10. , 
 
 The court hekl the practice liere to be clearly established by those cases, what- 
 ever might be the rule in the King\- Bench, and therefore tliat it was not now to be 
 disputed. 
 
 Rule absolute. 
 
 Hallx. Odij, 2 Pull, and Bos. 20. M. T. 40 Geo. III. A. D. 1799. 
 
 COCKELL, Serjeant, this day shewed cau.se against a rule nisi, f^r setting-off 
 the costs of an action of ejectment recovered by the present defendant, against 
 {he present plaintiff in the King's Bench, against the costs of an action of trespass Ik 
 
 (a) See also 6 Term Rep. B. E. 455. Randle v. Fuller.
 
 APPENDIX, 15' 
 
 tbi? court, in which the plaintifT liad recovered ft verdict ; and insisted that in all 
 the cases where a set-ofi" ni'ihis kind liad been allowed, both actions had been in 
 the same court ; as in Thrustoutd. Barnes v. Crofter. 2 Blach. 526. Sc/wole v. Noble and 
 otlieis, 1 Hen. Blach. 23. Nunez v. Modigliani, 1 Hen. Blacks. 217- Vaughan v. Da- 
 vies, 2 Hen. Blacks. 440, and Dennie v. Elliot, 2 Hen. Blacks. 537. But the court ovci'- 
 ruled t!ie objection, saying- that a set-ott'had even Ijeen allowed l)etween costs in a 
 C(>iiit of equity, and costs in a court of law; and Heath, J. observed tliat he re- 
 Hiembered a case, where an ejectment liaxinj^ been broiif;;ht in the Kings Bench, 
 and afterwards a formedon in this court, proceeding's were &ta3-cd in tlic latter 
 until the costs of the former were paid. 
 
 Cockell, Serjeant, then stated that lie opposed the rule on the part of the ])lain- 
 (ifl's attorney, v%h(i had not been paid his costs, and represented that the plaintiff 
 himself was now in prison. He cited Mitchell v. Oldfcld, 4 Term. Rep. 123, to 
 sJiew tliat the attorney had a lien on the judj^-ment for the amount of his costs. 
 
 ShepherJ, Serjeant, contra, relied on Dannie v. Elliot ; where it was held, that 
 whatever niiifht be tlie rule in the King's Bench, yet according- to the practice of 
 this court, the lien of the attorney was subject to the equitable claims of the jiai-ties. 
 
 ioriEi-DON, Chief Justice, finding- it to be the pi-acticeof this court that an at- 
 torney shall not take his costs out of the fund, which by his diligence he has re- 
 covered for his client, where tlie opj-.ositc party is entitled to set-oft', it docs not 
 become me to s.iy more that I find it to be the settled practice with much sur- 
 prise, since it stands in direct contradiction to the practice of every other court, as 
 well as to the principles of justice. In the court of Chancery the same parties are 
 often concerned in many suits ; and 1 nevtr knew the idea entertained of arrang-ing- 
 the fimds, till the respective attornies were paid their costs. However, as the at- 
 torney in this case has acted with a knowledg-e of the settled j)ractice of ;hc court, 
 he can have a rig-ht to claim the advantage of a more just princijjle ; and it will only 
 remain for the court to consider, whether tlte practiee of the coiu-t oi' Kir.g^s Bench 
 should not be adopted here for the future. 
 
 Heath, J. I have no objection to have tlio practice reconsidered. 
 
 RooKE, J. There can be no objection to reconsidering the ])raclice ; but it 
 <loes not appear to me to be unfair as it stands at present. The attorney looks ill 
 the first instance to the personal security of his client, and if beyond that he can get 
 any fmtlier scciu-ity into his hands, it is a mere casual advantage. 
 
 Rule absolute. 
 
 Mitchell V. ClOJield. H. T. 31 Geo. III. .-/. D. 1791. 4 Term. liefi. 123. 
 
 IN this action the plaintiff recovered a judgment ag-ainst the defendant for 182/. 
 \0s. But the defenrlant, having- also recovered in anf)ther action against this 
 plaintiff" and another, obtained a rule to shew cause why the debt and costs in the 
 latter should not be set-oft' against the judgment in the foriFier action; t.nggeslinjf 
 (among- other reasons) that Mit:hell had absconded. 
 
 Bearcrrf: now shewed, on behalf of Mitchells attorney in the first action ; eon 
 fenfling-tliat, as he v,-as not concerned as attorn<-y in the other aetion, he ha<l a lien 
 for his costs on the judgment obtained by bis client. He also liint(-d that ijrrhaji.s 
 the court would not interfere at all in this case; inasmuch as one <U bt wa.. due to 
 the plaintiff alone, whereas the other was the joint d( btofthe plaintiff" runl another 
 to the defendant ; and he observed that this was nut sucii a debt as could lie set-eifl 
 under tlie statute. But, 
 
 Lord Kes-yo.v, Ch. J. said, tliat this diil not d-pend on the statutes of set-off. 
 but OJi the g-eneral jiu-isdiction of th<- eourt over the suiiors in it ; ihat it was uii 
 equit-ible part of their jiirisdietlon, and had been fre(|Uently exrrciscd. Bui, as to 
 the otlier point, he obs* rved, that the attornies and .solieilors of the <lill"erent eourls 
 have a li(-n on all papers in their han(K-, and judgments rtcoveretl, for their costs; 
 that in the court of Chancery they w( re permitt( d to retain title deeds for that pur- 
 (>ose(a) ; and he thoug-hl it right that the allorn<-y in this ease should be satisfied 
 for his costs before the defendant was allovv< il to make the set-(j(r. 
 
 BuLLEB, J.— Thou;,'h tliis court have said that tliry villiv/t iniTfcrc on ihc 
 
 (<f ) /7 /f ar.'.e, '\ -.■o!. 27'>
 
 14 APPENDIX. 
 
 behalf of the attoriipy, and prevent the plamtiff settling' his own cause without first 
 paying the attorney's bill(o) yet wlie.n the adverse party, against whom a judg- 
 ment has been obtained, applies to get rid of that judgment, the court will take 
 ciu'e that the attorney's bill is satisfied. 
 
 The court made the rule absolute, on the defendant's undertaking to pay the at- 
 torney's bill, and on his entei'ing a remittitur in the cause in whicli this defendant 
 \\a.s plaintiff. (<-■) 
 
 Randlev. Fuller, M. T. 36 G. III. A. D. 1795. 6 T. R. 456. 
 
 A RULE was obtained to shew cause Avhy the master should not, upon taxation 
 of the costs in this cause, set off tlie sum of;"!"/. 3.i-. 6(/. against such costs as 
 should vipon taxation be found due from the defendant to the phiintilf, and if more 
 should be found due to the plaintiff than that sum then wliy u]5on payment of the 
 balance execution should not be stayed. This was founded upon an aftidavit stating 
 that tlie above-mentioned sum was due from tlie plaintiii' to the defendant upon a 
 judgment in a former action; and that the plaintiff had already received part of 
 his debt under an execution. 
 
 Shepherd shewed cause upon an afiidavlt of the plaintiff's attornej-, claimingallen 
 upon the costs and damages recovered in the present action, and requiring to have 
 such lien, which amounted to more than the sum demanded by the defendant, to be 
 set-off, satisfied in the first instance ; and stating furtlier that the plaintiff' had ab- 
 sconded, and that the attorney had no other securitj^ for his bill than the costs and 
 damages recovered. He contended that the practice of tlie coui-t permitting a set- 
 off in such cases as the present was never enforced adversely to tlie attorney's lien 
 if insisted upon by him; and that injustice it ought not to be extended furtlier, as 
 the attorney wlio had been at the trouble and expense of prosecuting a suit ought 
 not to be in a worse situation because his client was liable to otlier demands on 
 other accounts than those inchidcd in the suit prosecuted by such attorney. And 
 he referred to Mitchell v. Oldfield{a) 
 
 Vaughnn in support of the rule said that the principle had been laid down in the 
 court of Common Pleas to be that the attorney had only a lien subject to the equi- 
 table claim against his client ; if therefore the jjlaintifl'hcre could only conscientiously 
 recover the balance as between him and the defendant wlio had a cross claim upon 
 him, tlie attorney ought not to stand in a better situation than his principal, and still 
 less ought he to prejudice the rights of the defendant as against the plaintiff in the 
 cause. And he cited Thrustoiu d. Barnes v. Crafter{b) Schoole v. Noble{c) and 
 Nunez y. Mfjligliani^d) as shewing the practice in tlie Common Pleas ; and Welch 
 V. Ifole(e) where tliis court refused to obllg'e the defendant to pay the attorney's 
 demand, the defendant having compromised his debt with the plaintiff" without the 
 attorney's knowledge. (/" ) 
 
 The court desired the matter to stand over for fm'ther inquiry ; and on this day, 
 
 Lord Kenvon, Ch. J. said — It had been expressly determined in Mitchell v. 
 Oldjield that the atto!-ney had a general lien on the costs and damages recovered, 
 without any such restriction as was now attempted to be put upon it ; and that upon 
 the reason and justice of the case he could find no ground to impose such a restric- 
 tion. That whatever might be the practice in tlie coiu'tof Common Pleas, he was 
 glad to find that his opinion was warranted by the settled practice of this court. (^) 
 
 Rule discharged. 
 
 Sa/isford v. Fletcher, H. T. 32 Geo. III. J. D. 1792, 4 T. ie. 511. 
 
 REPLEVIN for taking goods in the plaintiff's dwelling house. Avowry for 
 50/. rent due at Christmas 1790 from Brookes to Fleicher''s testators for this 
 house , another avowry for the same rent due at the same time from the phiintiff to 
 the defendant's testator. Pleas in bar, first, as to 20/. (parcel of the 50/.) nothing 
 
 " (/>) Vid. Welch V. Hole, Dougl. 226, and Griffin v. Eyles, Hen. Blach. Pep. C. B. 122- 
 (c) See Scad v. Di/ppcr, post, 6 vol. 361, and Randle v. Fuller, post, 6 vol. 456. 
 (fl) Ante, 4 vol. 123. (e) Dougl. 238. 3d. edition. 
 
 lb) 2 Black. Sep. 826. (/) Vide Sead v. Dupper, ante, 361. 
 
 (c) 1 Hen. Black. Rep. 23. (^) Morland v. Rashleigh, Tr. 35 G. 3- 
 
 {d) lb. 217. B. R. S. P.
 
 in an-ear ; 2clly. As to 30/. tlie residue, a tender and no subsequent demand ; Sdly, 
 " Tliat WiUiam Fietchtr (deceased) in his life -time and at the time ( f liis death, 
 " and tlie said William Fletcher (the defendant) from tiie time of his deatli until 
 " and at the same time when, &c. held the said dwelling- house in which, &c. 
 *' with the appiu'teniuices as tenants thereof to the Duke o\' Portland, at and under 
 *• the vearlv rent of 5/. of lawful money o'( Great Britain to be paid at the four most 
 " usual feasts or days of payment of rent in tlte \ear, that is to say, Sec. by even 
 '• and equal portions. And th.at l^efore the s.'iid time \\ hen, &.c. 2t)/. of tlie said 
 " last mentioricd rent for four years, endinp^ at the feast of the Nativity of om- Lord 
 ** Christ 1790, became due and. in arrear from the said William Fletcher (the do- 
 " fendant) to the said Duke. And thereupon the said Duke, at the said feast of, 
 ** Sic. demanded payment ef the arrears of the said rent from the said W. Fletcher, 
 " (the defendant) but the said W. Fletcher then and tliei e refused to pay the same ; 
 " whereupon the said Duke afterwiu-ds, and bef re the said time when, &c. de- 
 " mandcd the payment of tl\e said arrears of rent ii-om the said ir. Brookes, a.s the 
 " occupier of the said dwcllin;^ house, and threatened to distrain ujxjn the jjoods 
 " and chattels in ajid upon the said dwelling- house and premises ; whereupon the 
 " said W. Broohes, in order to prevent the said i;-oods and chattels in and ujion iho 
 " said dwellinp* house and premises from being' <listrained, long- before the s:'id time 
 •' when, &c. to wit, on the 25th day December 1790, paid to the said Duke the 
 •* said 20/. the rent aforesaid, so being in arrear and inipaid as aforesaid ; and so 
 •' the plaintiff says that nothing- of tlie said 20/. of the rent aforesaid was in arrear 
 " to the said W' Fletcher (tlie defendant) in iv.anner and form as tlie said W. 
 " i^/e/^r/iO" (the defendant) hath above in liis said avowry alleged; and this the 
 " plaintiff, &e. wlicrefore," &c. A similar ])lea to the last avowry. 
 
 To both these there was a general demurrer. 
 
 Chainhre, in s>i])port of the demurrer, urged, that the ]ika in bar was no answer 
 to the avowrv, for thoug-h it was not pleaded in form as a set-oft, it was so in ef- 
 fect; and it has been held tlnitthc statutes of .set-oil' do not extend to a replevin. 
 Absolovi v. Knight.{a) Neitiier can the payment of a debt of the avowant be con- 
 sidered as payment of rent, so as to prove the plea that notliing is in arrear. The 
 plaintitf, having- stated the special grounds from wliieli he draws the conclusion that 
 nothing is in arrear, cannot be jK-rmitted to r( sf)rt to other gnninds to su])port it. 
 Now the circumstances here pleaded at the most only amomit to this, that the avow- 
 ant has contr.acted a debt with him ; for the relation in which be stands to the plain- 
 tiff cannot vary the case. It does not appear that the avowant had anv notice that 
 the plaintiff' had paid the ground-rent; and no person can be allowed to charge 
 another with a debt against his consent, or without his knowledj^^e. This there- 
 f)rc cannot be considered as a payment for the avowant, because the pla'mliif was 
 not authorised In make it. But even if it Iiad bef-n paid witli tiie avowant's ediiseiit, 
 and he had afterwards rei);iid the ])laintiff, the former might have avowed for tiic 
 whole rent in arrear; and \v\ if it could have been considered as part jiayment ol" 
 the rent bv tlie tenant at first, the dc fendant could not afterw ards have avowed for 
 that part of the rent ; and it is not alleged in the i)lea that the defendant has not re- 
 paid him. In all the land-tax acts a special provision is made to enable the tenant 
 to deduct the land-tax which is a charge \\\wn the land, out of the rent to be |)aitl 
 to the landlord : tiiis furnishes a strong argument tosliewthat in the eontemi)lali()n 
 of the legislature paying the land-tax by the tenant would not have been consider- 
 ed as i>arl payment of tile rent to the lessor, othcrwi.sc it would have been iniga- 
 tory to have inserted this clause in those acts. 
 
 Lord Kii.NVOv, Ch. J. — It is incumbent on a party, who wi.shcs to establish a 
 point contr:irv to all justice and e(|uity, to produce some direct airthorlty, shewing 
 that there is an inflexible rule of law established in opposition tc justice : but nu 
 huch authority has iieen ])roduced by the defendant to support hit claim. Tlif ge- 
 neral principles that have been relfed on in the argument, tiiat .1 set-olfcunnot be 
 pleaded to an avowry for rent, and that no person can make another his tU-btor by 
 vohmtarilv paving the debt of that other ])erson against his con<>nt, are not jpus- 
 lioiK (1. With regard to the first, it is nuKJi to be i.-imenled that it siiouhl have bc-en 
 ao decided ; however, for the sake of certainty in the law, we must sui)mit ti> 
 
 {a) Barnes 450. 4to edition, and BmII. N. P IHl. Grahaiv V. Fraine, II 24 C ? 
 B H. and Laycock y. 'ftiffnd, F.. 27 G 2. li. R. S 1'
 
 iO APPENDIX. 
 
 those (Iccislons, till tie leg'islaturc alter the law. But this is not across demand ■ 
 the ground-i-fnt paid by tlie plaintiff' was in dischai-s>-e of a demand superior to the 
 improved rent ; it wfi.s the tir.st charg'e from v.'liicli tlie defendant was to exonerate 
 himself before he piijt any of t!ie rent due from the plaintiti' into his own jjocket 
 Tills was a payment in respect of the occupation. And to the other position I i)er - 
 fectly subscribe ; Ijiit it cannot i^'overu this case. Here tlie plaintiti was sub-teuant 
 to an estate of the defendant's iield under tlie Duke oi Portland ; the i^round-rent 
 being- in arrcar, the Duke of PurtlaiKPs ag-ents ap-plied to the plaintiti fcr j;; yrnent, 
 which they had it in their power toenforce by distress ; and they even th; eater.ed to 
 do so ; it was therefore hy coinpulsion that the plaintiti' paid this mor.ey, wliicl) w;is 
 due in repect of the very property whicli he held as tenant to the defendant, -..nd 
 of the same property for whicli this distress was made. This then is clearly dis- 
 tinpfuishable from the case of a voluntary payvicnt made to charg^e another person 
 with a debt ag-ainst his consent. And now the defendant ins.sts that, thouc,h .dl 
 this property was liable to tlie i^-round-rent, and thoug-h this was the first chaig-e (,a 
 the land, he is to i-eceive the whole of the reserved rent from the plaintilt, without 
 making any deduction from the grotmd-rent. But a more unconscientious prcj;o- 
 sition Wiis never stated in a coiU't of justice. 
 
 BuLLER, J. («) — There is a g-rciit diilerence between a payment and a set-ofi'; 
 the former may be pleaded to an avovvry, thoug-h tiie latter cannot. That is a good 
 pavment wliich is paid as part of the rent itself in respectof the kind : but a set-oft' 
 supposes a different demand, arising- in a diHl-rcnt right. A case put at the bar ad- 
 mits of a decisive answer : it was said that if the tenant had paid the g-round-rcnt, 
 and the defendant had afterwards repaid him, the latter could not avow for the 
 •whole rent; but, whether the payment of a sum of money is to be considered as a 
 payment by one person for the debt of another must depend on the will and consent 
 «f both pai'ties ; and if it be once considered by both as payment, tlie debt cannot 
 afterwards be revived. And my answer to the case supposed is this, that the pay- 
 ment there never was considered by both as a payment ; and, if not, the whole rent 
 remains due. I consider this case as a lease by tlie defendant to tliC plaintitt'at tiie 
 annual rent of 50/. out of which 51. per anr.iim vvas to be paid to the g-ronnd-Iai id- 
 lord ; and therefore apayment of that g-round-rcnt is a payment of so much rent to 
 the defend-mt, an.d may be pleaded in answer to the avowry for rent. Neither can 
 wa suppose upon this record that the defendant ever repaid the plaintiff this 
 ground-rent ; for, if lie had, he mi,£^ht have replied that fact. 
 
 Grose, J. — The principles relied on by the defendant's counsel are not disputed, 
 but they are not applicable to this case .It must be admitted that a plaintiti' cannot 
 olead a set-ofl" to an avowry for rent, and that one person caiinot make another his 
 debtor by a voluntary ]myment. But tliis is neither the one nor the other. It is a 
 compulsory payment made by the plaintiff to ]jrotect him from a distress for tlie 
 g-round-rent due to the original landlord. 
 
 Judg-mcnt fir the plaintiff. 
 
 Ord V. Rus/iim, T. T. 'Z7 Geo. III. 2 Es/i. Cas. 569. 
 
 A SSUMPSIT on a bill of exchange accepted by the defendant, which was due 
 uTX. some time in the year 1784. 
 
 Pleas. Non-assumpsit, Statute of Limitations, and a Set-off. 
 
 rhe set-oif consisted of bills of exchange and promissory notes of the plaintiff's, 
 wliich the defendant had taken up or paid on his account ; they were all dated in 
 the year 1784. 
 
 tWo objections were made to the set-off. — First. Thatinorder to entitle tlie de- 
 fendant to go into evidence respecting those bills and notes, they ought to liave 
 been made the special objects of a set-off. 
 
 Loi'd Kenyon overruled the objection, and held, that they were good evidence 
 under the count for money paid to the plai-atifi"'s use. 
 
 The second objection was, that though the idaintiff's demand against the de- 
 fendant had accr'.icd so far back as the year 1784, yet in fact he had kept it alive 
 by having sued out process within the six years, and continued it ; but that as the 
 defendant had not done so, his demand against the plaintiff must be held to be 
 ban-ed by the statute ; and so not such as could demand a set-off. 
 
 (a) Abs. Ashhurst, J.
 
 APPENDIX. 17 
 
 Lord Ken'yon- said, that as the transactions heUvcen tho plaintiff and the defen- 
 dant W" re all of the same date, and as the bills seemed to have been «;ivcn In the 
 course of those transactions, and for their mutual aeconiniodation, it woukl be the 
 hic'iK-'St iiijiistiee to alknv one to have an operation \>y law and not the other, and 
 that he would therefore hold the latter to bo c^ood as well as the former, and sutler 
 tliemio be sot-oft'. 
 
 Ti'.e defendant proved the payment of the bills and notes as a set-ofT, and had a 
 verdict. 
 
 JDunmorew Taylor^ H. T. ?A Geo. III. Pcakc 41. 
 
 ASSUMPSIT for pj-oods sold and delivered. Set-off for goods sold and deli- 
 vered, and also for goods hargair.ed and sold. 
 
 Oil tlie cross examination of the plaintiff's witness it appeared that the defendant 
 had made a wagp;-on for the plaintiff, but had refused to deliver it unh-ss the plain- 
 tiff v.'ould get some person to join him in giving a security for the balance which 
 the delivery of the waggon would make in his favour. The plaintiff was then in- 
 solvent. 
 
 It was objected that this contract, being only executory, could not be made the 
 subject of a Ket-oif. 
 
 BiLLER, J. tlicught it could be set-off as goods bargained and sold. When the 
 cause had proceeil'^d further, it appeared that ii was afterwards agreed that the 
 phiintHirtliould noi iiiive the waggon, but that the defendant should keep it. Upon 
 v.-iilch tlic plaiutifrhad a verdict. 
 
 Ncjtc. After liic cause was over Mr. J. Bulhr said th.ithc thought an indebitatus 
 ajium/isit would lie in this case, but that there was some nicety in the question. 
 
 Freeman v, Hyatt, M. T. Geo. III. K. D. 1 Blacks. 39 i. 
 
 ACTION for money due for a parcel of cloth. Dunning moved to stay the trial 
 of tlie cause, in order to send a commission into Portugal, to establi.'sh a fact 
 by way of set-olf; viz. That in a former parcel of cloths, sent to Portugal, .iiul 
 bought of the same plaintitt", it appeared on opening the bale, that they were burnt 
 in the pressing, wliich had greatly lowered tlieir value. 
 
 Nortony Solicitor-General, objected, that the set-ofl' was not maintainable. You 
 
 migiit as well set-off the damages which you are entitled to recover for a lj.attery. 
 You should bring your special action on the case : 
 
 And of that opinion was the court, and denied the motion. 
 
 ILivlet and Jnothcr V. Utrickland^ E. T. 14 Geo. III. A. D. 1774. B. R. 
 
 CoTJji. 56. 
 
 THIS was .in action of covcnnnt. The defendant pleaded th.nt he had sustained 
 gi-e ate r damages by reason of the breaches conunitted on the part of the plain- 
 tiff, th.an tlie value of the damages sustained by the ])laintift' on accoimt of the 
 bieacFies alleget! in the declaration : all the breaches assigned in the plea were for 
 uon-delivcry of alium in due time. The plaintifidenuuTed, and for special cause 
 assigned, that it was i.ot eomi)Ctent to the defendant to pU ad these damages by way 
 '.r.vt-off. 
 
 Mr. Chamiri- for the phiintiff. The covenant is not for money, therefore the 
 Mi.niages cannot be set-ofl", either by stat. 2 C. 2. c. 22. or 8 G. 2. c. 24. For they 
 are not d'bts, nor rccovcruLle as sucti. A tender is (*nly pleadable to an action of 
 contract for monf-v. 
 
 Ill no part of tli'c plea is it alleged, that these are mutual debts. Rut further '\\\ 
 this case, the dam.ages to be recovered ujmn the covenant are totally imrerlain ; the 
 measure of them depemling upon the discretion of the jury. It is im()ossible iherc- 
 fore for the p.iiiie.s to aflix .any prt cise balance ; cons<(juently the act of iiarlianuiit 
 (.annot extend to them. If the constnu tion which is contend<<l for on the other 
 .side, is to prevail, daniagcH upon a breach of marriage contract niiglit k- in.sisled 
 upon as debt^ : and tli' ■ tine n.i fining migh' cM- ml totti'.- srttin!7-off dainagcH in 
 I] action of UOV<y 
 
 (
 
 ib APPENDIX. 
 
 Mr. Serjeant IValksr ior the defendant. By stat. 2 G. 2. c. 22. a defendant is at 
 liberty to set-ofiany demand that he may have against the plaintiff; or to plead it 
 i\i b;u' as the nature of tlie case may require, and by stat. 8 G. 2. c. 24. this power 
 IS extended to debts of a ditlerent nature. 
 
 The present action is an action foi- damages, and the set-off is of the same nature 
 as the demand ; viz. unliquidated damages : the verdict therefore will decide the 
 balance. The uncertainty of the damages cannot be a foundation for the distinc- 
 tion insisted on : for the words of the stat. are general, " mutual debts :" and in 
 almost all the cases where a set-ofiis allow^ed, the balance is uncertain. In an ac- 
 tion upon a quanutm meruit, the very expression shows that the damages are unli- 
 quidated : so in an action for work or labour done, for goods sold and delivered, 
 the damages are unliquidated. No inconvenience can arise in the present case, 
 because these damages arise upon the same instrument, and make but one transac- 
 tion : the jury therefore can decide with equal ease upon both. 
 
 Lord Mansfield. I take this plea to be merely for the purpose of delay. The 
 act of parliament, and the reason of the thing, relate to mutual debts only. These 
 damages are no debts. An indebitatus assumpsit could not be brought for them. 
 
 Mr Justice Ash HURST. Debts to be set-oft' must be such as an indebitatus as- 
 sumpsit will lie for. 
 
 Mr. Justice Aston. Clearly an unliquidated demand or uncertain damage.? 
 cannot be set-ofl". Mr. Justice" Willes concurred. 
 
 Judgment for the plaintiff. 
 
 Wdgallv. Waters, M. T. 36 Geo. 3. J. D. 1795. 6 T. R. 488. 
 
 TO an action of covenant for half a year's rent, 27/. 10*. due at Christmas 1794, 
 for a house demised by the plaintiff to the defendant for 21 years from Christ- 
 oiias 1788, the latter pleaded that by the said indenture (on which the action was 
 brouo-ht) he the defendant covenanted to repair and to surrender to the plaintiff at 
 the end of the term the same premises well and sufficiently repaired, "casualties 
 by fire and tempest excepted ;" that before the 24th of June 1794, a violent tempest 
 arose and threw down with great force and violence a stack of chimneys belonging 
 to the house on the roof of the house, &c. and damaged the house so much that it 
 would soon have become uninhabitable, if he (the defendant) had not immediately 
 repaired it ; that he was obliged to lay out in the repairs 30/. which the plaintiff' 
 became liable to repay to him ; that that sum is still due to the defendant, and ex- 
 ceeds the damages sustained by the plaintiff" by reason of the breach of covenant 
 assigned ; and that he is ready to set-oflTthat 30/. &c. according to the statute. 
 
 To this plea there was a special demurrer, assigning these causes ; that it is not 
 alleged in the plea that the plaintiff' had any notice of the tempest or of the damage- 
 thereby done to the house, nor that he was requested to repair the same before the 
 defendant made the repairs stated in the plea, &c. 
 
 Holroyd was to have argued in support of the demuiTcr, and 
 Toller against it. But 
 
 The court said that the plea coidd not possibly be supported, and that It did not 
 admit of any argument. 
 
 Lord Ke'nyox, Ch. J. One objection to the plea is, that it does not set-off" any 
 certain debt, but uncertain damages. I do not indeed see by what covenant the 
 landlord is bound to repair damages occasioned by fu-e or tempest ; the exception 
 was introduced in the lessee's covenant for his benefit, and to exempt him from 
 particular repairs. But if the defendant can maintain any action against the plain- 
 tiff", (his landlord) the sum to be recovered is uncertain ; it must be assessed by a 
 ivu'v ; and there is no pretence to say that those uncertain damages may be set-off" 
 to the present action. If the plaintiff"has fairly laid out money in I'epairing what he 
 was not bound to repair, perhaps a court of equity will give him relief. 
 
 Judgment for the plaintiff'.(a) 
 
 (a) Vid. Paradine v. Jane, All. 26. Monk v. Cooper, 2 Str. 763. Belfcur v. Westotij 
 ante 1 •col. 310. Doe v. Sandham, ib. 705. and Brovin v. Shtilter, Amb. 619.
 
 APPENDIX. 19 
 
 French^ jissignee, y. Fcnn, T. T. 1783. Cooke^ 634. 
 
 IN an action brought ag-ainst the defendant for money had ;ind received to tlie use 
 of the plaintiff's as assijjnees of Cox. 
 
 The defendant pleaded tlie g-eneral issue, a verdict was found for the plaintiffs, 
 subject to the opinion of the coui-t on tlie following case : 
 
 That on the 24tli of Januiiry 1778, Cox, Holford and Fenn, agreed to purchase a 
 row of pearls for an adventure in trade, and liiat Fenn should advance the money- 
 The agreement was as follows : " London, 24th January 1778, y. Cox, y. Hulfoi'j, 
 " and y. Fenn, piu'chased a row of pearls of ya77ies Le yeune, for 2050/. including 
 *' the commission. The said sum was advanced by y. Fenn, upon an agreement 
 " that profit and loss thereon should be equally divided between them in tliirds ; 
 " in consequence of which we the undersigned do hereby agree to pay two-thirds 
 " of the interest tliereon, from the said 24th of Januai-y 1778, till tlie said row of 
 "pearls are sold. Signed by Holford, and Cor." 
 
 In November 1778, Cox became a bankrui^t, after which the defendant sent the 
 row of pearls to C/j/Via, wliere it was sold for 6000/. and the nett produce thereon 
 being 5000L was remitted to the defendant. 
 
 Cox, at the time of his bankruptcy, was indebted to the defendant in a much 
 larger sum than a third of the prohts of this adventure. 
 
 The defendant in this action had pleaded non assumpsit, and given notice of set- 
 eff : the question for the consideration of the court therefoi-e was, whether he was 
 entitled to set-off ihe sums owing to him from tiie bankru])t in bar of tiie action 
 brought by the bankrupt's assignees for a third of the profits iu-ising from the sale 
 of tiie pearls. 
 
 It was argued by Davenport and Lee, at different times, for the plaintiff, and by 
 Bahkvin and Wilson, for the defendant. 
 
 For the plaintiHit was insisted, tliat if these partners were part owners in a ship, 
 and one of them became bankrupt, tlie third sliare of the ship vests in the assignees, 
 and afterwards when the ship is sold the assignees must be paid a third, and if he 
 was privately indebted to tlie other partners it could not be set-off. 
 
 Suppose these pearls had consisted of three of equal value, had not the assignees 
 a right to one if they had been divided? Then sending them abroad afterwards and 
 changing them into money can make no difference. 
 
 There is not any usage which peculiarly decides this point 
 
 In Prescofs case, 1 Atk. 230 the petitioner was a creditor of the bankrupt for 
 100/. and 10/. and a debtor to him on bond for 340/. payable on the 4th of March 
 1756, with lawful interest, and applied to set-oHhis demand of 100/. against the 
 principal and i.iterest due on the bond, and not be obliged to prove bis debt under 
 the commission, and take a dividend upon it only. The Lord Chancelli)r said, 
 though this is not in strictness a mutual debt, yet it is a mutual credit, for the 
 bankrupt gives credit to tlie party in consideration of tlie bond tliough payable at ii 
 future day, and he gives the bankrupt credit for the debt upon simple contract, 
 and therefore it is a case within the e(]uity of the 5 Geo. 2. 
 
 In the case ex parte Deezc, 1 Ath. 228.it was determined that the purchaser may 
 retain goods till he is paid tlie price of parking ; and if lie has anotlier debt due to 
 him from tlie same person, the goods sliall not be taken from iiiin till he has paid 
 the whole, notwithstanding the debtor is become a bankrupt. 
 
 None of the cases that have been determined ruled this. Cox at tlic time of his 
 bankruptcy was indebted to the defendant in a nuich larger sum ; there was at that 
 time no mutual credit at all; at the time he broke there was no mutual debt ; n(. mu- 
 tual credit ; Fenn was the only creditor. 
 
 It is stated that the nelt produce was remitted to the defendant without any con. 
 sent of Cox as far as it appears, and even without his knowledge 
 
 Tiiere was no remittance till some years after the bankniptey, so that the case 
 excludes the possibility of Cox, or any person standing in his place, having at that 
 time any demand upon fV;!/). 
 
 The 5 G. 2. c. 30. s. 28. enacts, that where there hath be.-u mutual rndil given 
 by the bankrupt or any other person, or mutual d. bis between the bnnknipt and any 
 otiicr person at anytime before surli person beraine banknip), <ine debt may l-e set 
 against anotlier, and v h:(». ".h;.!! appear to be due on eithrr -i.!- on balance of hucli
 
 20 APPENDIX. 
 
 account, and on setting' such debts one against another, and no more, shall be 
 chuimed or paid on cither side resi)cctively. 
 
 The accounts by tiiis statute must be befoi-ethe banki'uptcy. This is the essen- 
 tial difference between this case and t^iose decided. 
 
 Fenn owed Cvx nothing at the time of the bankruptcy. I'lie very pearl was in 
 England at that time. 
 
 ihe moment he became a bankrnptthcrc was an entire stop put to all his affairs. 
 
 Could Fenn have gone before the commissioners and said, 1 don't choose to prove 
 this, because there is an adventure between us : when tlve proceeds are remitted 
 home I will retain my debts. 
 
 There was no credit, nor no idea of credit till long after the banlu'uptcy. 
 
 The statute seems to m;Ji.e tliat event a stop and a rest in the afi'airs, beyond 
 which nothing should go on. 
 
 There is no case decided circumstanced like this 
 
 Had Cox any demand uponFt77«, at tlie time of buying the row of pearls ? 
 
 Fenn could not have brought an action against any of them till the goods wcra 
 sold. 
 
 To allow this set-off would be contrary to the words of the act. 
 
 The com'ton the second argument stopped Mr. Wilson for the defendant, and 
 Lord 3/a?!*/?e/i/ said, The act of parliament is accurately drav/n to avoid the in- 
 justice tliat would be done if the words %vere only mutual debts, and it therefore 
 provides for mutual credit. 
 
 In this case credit is given to the defendant for a row of pearls, v/liich is to be- 
 long in thirds to tlirce persons. As Fenn advanced the whole money, the other 
 two were to pay liim interest for tlieir shares till the pearls were sold ; there is no 
 doubt but there was a mutual credit. Cox had trusted him with the pearls, and 
 he had trusted Cox with other goods, which in all probability he would not have 
 otherwise done. — This is the real justice of the case if there had been no bank- 
 ruptcy, and the bankruptcy ought not to alter the i-eal justice oftlie case. 
 
 Mr. Justice Bulleu. — Whei'e there is a trust between two men on each side, 
 that makes a mutual credit. 
 
 The whole of the Solicitor's {Lee) argument goes to shew there are no word.s 
 in the act but mutual debts, which is directly contrary to the fact. 
 
 On principle and justice there is no diilei'ence between this case and those of 
 Prescot and Decze. 
 
 The set-off being allowed, the postea was ordered to the dv^' ndant. 
 
 Slipper and Others^ Assig)iees of Lane v. Sticiitone. H. T. 34 Geo, III. A. 
 Z7...1794. 5 T. R. 49.1. 
 
 TO this action for work and l.ibour done by the bankrupt, goods sold and de- 
 livered, and money lent by him, the defendant pleaded the general i.ssue, 
 and gave a notice of set-off for work and labour oi"thc defendant and oiie P. Abbot, 
 since deceased, whom the defendant survived, by tliem performed for the bank- 
 rupt. Sec. At the trial before Lord A'tVivow, the sum set-off exceeded tlie plain- 
 tiff's demand, upon which the plaintiff" was nonsuited, though it was contended 
 on his belialf that the set-off was in auter droit, and ought not to be allowed in tjas 
 action. 
 
 Laix on a former day in this term moved to set aside the nonsuit, contending 
 that the set-off slxould not have been allowed, for that there was no nmtuality of 
 debt; that the fund out of which the satisfiction was to be made by the plaintiff to 
 the defendant as surviving partner was not the samq as that from whicli satisfaction 
 was to be made to the plaintiff by tlie defendant ; tliat the only mutuality here 
 consisted in the personsof the plaintiff and defendant; thai before the death of yiZ/Aoi 
 it coidd not be pretended that the debt due from the plaintiff tf) him and the defen- 
 dant could be set-off in an action against the defendant ; and that on principle, the 
 death of Abbot could not vary this question. That this set-off could not be per- 
 mitted anymore than a debt due from the plaintifl'to any person to whom the de- 
 fendant happened to be executor ; and that if this set-oifwere allowed, it would 
 create confusion in the arrang-ementof the costs of the different suits. 
 
 The court then granted a rule nisi : but on this day they recommended it to the 
 plaintifTnot to druw up the rule, as it would only enhance the expense of the suit.
 
 APPENDIX. 21 
 
 the question being perfectly clear with the clofondant. They saidtliat the defen- 
 dant mig'lit have declaimed ug-ainst the plaintitV tor this demand and also for any sum 
 due to him separately(a) if any such had been due ; and that tiicrofore there was 
 no reason why the set-otf should not be allowed. Rule refused. 
 
 French v. Jjidrade, H. T. 36 Geo. III. A. D. 1796. 6 T^R. 582. 
 
 THIS was an action upon promises ; to which the defendant pleaded that the 
 plaintiff and one y. Xtvcton who died before the commencement of the action 
 were indebted to the defendant in divers sums of money, 8ic. for work and labour^ 
 money paid &.c. that those sums remained unpaid at the death of y. Neuton, and at. 
 the time of conmiencing' this action were and still are due from the plaintitl'to tiio 
 defendant ; and that they exceed the sum due from the defendant lo the plaintiff, 
 against which sum the defendant is willing to set-ofl', &c. 
 
 To this plea there was a general demurrer. ' 
 
 Marryat, in support of the plea, mentioned the case of Slipper v. StiJstotie(l>) a.'5 
 decisive of the present ; which 
 
 Wood, contra, admitted. 
 
 Per Curiam. It is perfectly clear that the debt due from tiie plaintiff as sur- 
 viving partner may be set-ofl' against tlie denwuid he has in Ids own right on the 
 defendant. Judgment for the defendant. 
 
 Fletcher v. Dijche, T. T. 27 Geo. III. A. D. 1787. 2 T. R. .>3. 
 
 ASSUMPSIT for work and labour, for goods sold and delivered, money paid, 
 &c. Pleas, non assumpsit ,- 2dly. Set-ofl" for money paid, and had and reeeiv-^ 
 ed ; 3dly. A plea of set-off as follows : That heretofore, lo wit, on the 27th day of 
 Jime 1785, tu wit, at, &c. the plaintiff by a certain writing obligatory sealed, &.c. 
 became held and firmly bound to the defendant in the sum of 236/. to be paid la 
 the defendant, when he the plaintiff should be thereto afterwards requested, with 
 and under a certain condition thereto subscribed and underwritten, reciting that 
 the defendant had contracted and agreed with the committee chosen for the order- 
 ing, appointirg,.'inddirectingof tlierepairsof the parish churchof St. Mary-lc-Bosv, 
 London, for repairing of the said parish churcli, according lo a certain particular or 
 plan thereof given ; and reciting, that one 'Jolui Bowiey, therein called the abo\t- 
 bounden yo/in Do^ccky, but whc) never executed tlie said writing obligatory, aiul 
 the plaintiff', iiad contracted and agreed with the defendant, that they would do, per- 
 form, and execute, all the smith's and ironmonger's work, to be done and perform- 
 ed in and about the repairs of the said parish church, and which were mentionei! 
 and expressed in the said particular plan, or estimate, and in the manner llieicin 
 directed to be done, and find and providv: all tiie materials for the doing thereof 
 within tiic time or space of six weeks from the day of the date of the said willnig 
 obligatoiy, at and for the price or sum of 118/. I8.1. whith was agreed to be ])ai>l 
 in three months after the said p.'j-ish chureii should be completely repaired ; auil 
 had agreed that if they should iiot have done and performed tiie said smith's and 
 ironmonger's work within tlie time therein before mentior.ed to have been agreed 
 upon and limited for the doingtiiereof, they would Ibrfeit and pay to the defentlant 
 the sum of 10/. for every week after tlie expiration of tlie time agreed upon and 
 limited f jr the doing thereof, until the said smith's and iionmonger's \\ork sliouh! 
 be completeK finished ; the condition iheiofore ofthe said writing obligatory was, 
 that they the'said yohii D'yjjU'y mu\ the plaintlH should within the time or space of 
 six weeks [lerform in a good and workmanlike manner, according to the said jil.ui, 
 all the smith's and ironinonger's work, Sic. an<l should find and provide ihc ma- 
 terials, &.c. and should keep indemnifii-d the defendant, his executors, Sec. and 
 that if they the said ^0/1/1 Do\d<y and the jilaintKf. should make default, or sluiuid 
 neglect to" do the said smith's and ironmonger's work within the time limited, 
 they should well .-ind truly pay lo the defendant, hi-; c.cee.utorK, &c. tlu- sum of lo/ 
 for every wet-k from the time the saitl Miiith's and ironinongii's work uuglit to b»j 
 done, being six wei.-ks from the day of the date of the said writing obligatorv. un 
 therein above mentioned, until the 'same .should be completely finished. .■\nd tho 
 
 (a) Vide HMrori- v Uayvmnd, nntr, 1 -.ol •!"■;. f/') Antr, .1 wl \')?>
 
 22 APPENDIX. 
 
 defendant in factsaith, that the said yohn Dowley and the plaintlflFdid not, nor did 
 either of them, within the said time or space of six weeks from the day of the date 
 of the said writing oblig^atory, do, perform, or execute, or cause, &c. all the smith's 
 and ironmonger's woi-k, 8tc. but neglected and omitted so to do, and therein failed 
 and made default, and on the contrary thereof suli'ered and permitted the said 
 smith's and ironmonger's work to be and remain unfinished for the space of four 
 weeks next after the expiration of the time agreed upon and limited for the doing 
 thereof as aforesaid ; whereby, and by force of the said writing obligatory, and 
 condition, the plaintiff became liable to pay to the defendant the sum of 40/. being 
 at and after the rate of 10/. for each aiid every week of the said four weeks, after 
 the expiration of the time so agreed upon and limited for the doing of the said 
 smith's and ironmonger's work, during which the same so remained unfinished as 
 aforesaid ; and the said sum of 40/. and every part thereof at the time of the com- 
 mencement of this suit was and still is really and justly due and owing from the 
 plaintiff to the defendant upon and by virtue of the said writing obligatory, and the 
 condition thereof; and which said sum of 40/. so due and owing from the plaintiff 
 to the defendant exceeds the damages sustained by the plaintiff, by reason of the 
 not perfoi-mlng of the said several promises and undertakings in the said declara- 
 tion mentioned, and out of which said sum of 40/. he the defendant Is ready and 
 vriUlng and hereby offers to set-off and allow the amount of the damages sustained 
 by the plaintiff, according to the form of the statute. Sic. and this the defendant is 
 ready to verify, wherefore, &c. 
 
 To this third plea there was a general demurrer, and joinder in demuiTer. 
 
 Law, In support of the demurrer, contended that the third ])lea setting off the 
 four penalties, at the rate of 10/. for four weeks after the expiration of the time 
 limited for doing the smith's and Ironmongers's work, could not be supported. First, 
 because it attempts to set-off a penalty instead of the money justly due. If this 
 set-off can be allowed at all, it must be under the 8 Geo. 2. c. 24. s. 5. But that 
 statvite does not extend to this case ; for that only allows the debt really and justly 
 due to be set-off. So that a penalty cannot be set-off at all ; now this is strictly a 
 penalty ; the words creating the penalty are " that the plaintiff shall forfeit and 
 pay 10/. weekly, &c. And it cannot be considered as a mere compensation to the 
 defendant for non-performance of the work within the time limited ; for it does not 
 appear that the defendant was himself under any limitation in point of time as to 
 the performance of his contract with the commissioners. It Is likewise excessive, 
 because it bears no proportion to the whole sum to be paid for the work done. And 
 there are no other limits to the penalty than the penalty of the bond itself If it be 
 contended by the defendant's counsel, that this Is In the nature of a liquidated sa- 
 tisfaction. It is to be observed that this Is not like any of those cases which have 
 been determined on that ground. In the case of Rolfo v. Peterson(a) where the 
 lessee covenanted to pay an Increased rent for ploughing up meadow ground, it was 
 considered not as a penalty, but as a liquidated satisfaction : for it was only an 
 agreement to p.ay a larger sum for using the land in a particular way. But the pre- 
 sent case is that "of a strict penalty. In consequence of not performing an agreement, 
 for which there does not appear to be any equivalent to the party. There are se- 
 veral cases where penalties have been considered in the nature of liquidated dama- 
 ges, but those are cases where the penalties have barely exceeded the sums really 
 due, and they have been allowed to save the parties expense. Such was the case 
 of Tall V. Ryland, 1 Ch. Cas 183. In Ntdriffe v. Hogan,{b) it was _ determined that 
 a penalty cannot be set-off. If an action had been brought on this bond, it would 
 Lave been competent to the jury to have given less damages than the amount of 
 these penalties. 2 Rol. Abr. 703.pl. 9.(c) Before the statute 8 and 9 W. 3. the 
 jury might have given less damages than the penalty. 1 iew. 111. And since 
 the statute they ought to give the damages really sustained by the non-performance 
 of the work. Here the party might be put In as good a plight as if the condi- 
 tion of the b^nd had been performed : tills rule was laid down by 'Lord Somers,{d) 
 that in such case a court of equity would i-elleve ; therefore the defendant 
 should have averred that the damages' really incurred by the non-performance of 
 the agreement amoiuited to the sum wliich he intended to set-off. This is not 
 
 (a) 6 Bro. Pari. Cas. 470. (/>) 2 Burr. 1024. 
 
 (c) Vide 4 Burr. 2229. 2231. {d) Free, in Chan. 487.
 
 APPENDIX. 23 
 
 like Uxe case of demurrag'e, which is a stipulated rate of hire, and not a forfeiture; 
 for there tlie owner of the ship loses the use of her during the whole time she is 
 detained, and the other party has the use of her the whole time. 
 
 But secondly- This cannot be set-oft', because there is no strict mutuality. It sets 
 off money, which, by the condition of the bond, was to become due from the plain- 
 tiff and another, and not from the plaintift" iJone, by virtue of an antecedent agi-ee- 
 ment between the three. Andtliough this bond was only executed by the plaintiff 
 yet the defendant is estopped from saying that this debt is not due from tlic plain- 
 tiff and another ; he cannot dispute their joint liability. Besides, the breuch as- 
 signed is not wai-ranted by the condition. The bond is conditioned for the per- 
 formance of certain work in a limited time by two, or payment by two oi'lOi.per 
 week. The bi-each should have been assigned, that the two had neither done the 
 work, nor paid the money, whereby the penalty became forfeited. AVhereas it is 
 assigned, that the two had not done the work, 8ic. whereby the one became liable 
 to pay tlie 10/. per week : but no such liability was created by tlie bond itself. 
 
 The other side was stopped by the court. 
 
 AsHHLRST, J. The sums set-off are in the nature of liquidated damages, and 
 are such a kind of penalty, if tlicy may be called by that name, as a court of 
 eqiuty would not relieve against. The object of thepai-ties in naming this ^\e^■kly 
 sum was to prevent any altercation with respect to the quantum of damages which 
 the defendant might sustain by reason of the non-performance of the contract. It 
 would have been difhcuit for the jury to have ascertained what damages the defen- 
 dant had really suffered by tlie breach of the agreement ; and tlicreforc it was pro- 
 per for the contracting parties to ascertain it by their agreement. So that this is a 
 case of stipulated damages, and it is not to be considered as a penalty. If so, and 
 the parties have entered into a joint and several bond, it becomes the separate 
 debt of botli, and therefore may be set-oft' against either. Then it has been ob- 
 jected, tliat there is no mtituality in the debts ; because, first, it is a joint debt ; 
 and secondly that the plaintift' should have a compensation from the otlier party. 
 As to the first, it is sufficient to say, that tills is a separate as well as !X joint debt, 
 and therefore maybe set-off". And as to the other ground of objection, it is not 
 necessary to determine that question in tiiis case ; but if it were, I think he might 
 have compensation in another form, by bringing an action for money paid, laid out, 
 and expended to his use. But that is not material as between these parties. 
 
 BuLLEti, J. The principal question to be considered is, whether this is in the 
 nature of liquidated damages of a penalty. When there is a penalty in tlie bond, 
 it is strange tliat tlie sum mentioned in the condition could be called a penalty. I 
 do not know how there can be an equitable and a legal penalt)-. But this is as 
 strongly a cxse of liquidated damages as can possibly exist, and is like the case of 
 demurrage. In cither case it is impossible to ascertain precisely what damage* 
 the party has really sustained ; andtheref)rc the contracting parties agree to pay 
 a stipulated sum. Then it was contended that tlie defendant might have recovered 
 less damages tlian the amount of this stipulated sum before a jury ; but tliat is not 
 so. In tlic case of Lowe v. Feers,(a) where a stipulated sum was claimed for 
 breach of a marriage contract, hovd Mans/ie/d sii'u\, " wliere tlic precise sum i.s 
 " fixed and agreed upon between the parties, that very sum is the ascertained da- 
 " mage, and the jury arc ronfined to it." As to the case in 1 Lev. that was de- 
 termined on the ground of its being a catciiing bargain. Tlie plaintift 's counsel 
 then objected to this set-off because there was no mutuality ; buttliat depemls on 
 the question, whetlierthe debt is due from the [ilainliftand anotlier person, or from 
 the plaintift' alone. If the former, the debt cannot be set-oft'; I)ut it appears tli»t 
 the bond w.hs executed by tlic plaintiff alone. No debt can arise upon the b(md 
 from tlie otlier party who did not execute. The plaintiff" tlicreforc alone can be 
 sued upon the bond ; .so that there is a mutuality. 
 
 Grose, J. was of the same opinion. 
 
 But the court afterwards gave the plaintiff leave to amend on paj-ment of cost's. 
 
 (a) 4 flurr. 322.x
 
 24 Ari'ENDIX. 
 
 Vullcr and Others, Astsignecfi, is'c. nf Forben and Gr'egorij, BankrujUs^ \ , Roe 
 and Others^ M. 7". *34 Geo. III. Peake 197. 
 
 ASSUMPSIT on .i pvomlssorv note for 9800/. dated March 8, 1793, payable to 
 Charles Cald-ivelt, Esij. and Company, or order, and by them indorsed to the 
 bankrupts under the firm of " Messrs. B. Burton, Forbes and Gregory." 
 The defendants pleaded the g-eneral issue, and g-ave notice of sct-of}'. 
 Bart/iolonievj Burton, and the bankrupt i-6;-A«, carried on the business of g'cncral 
 merchants in London, from the jear 1762 to 1769, and on the Slstof Januaiv 1769 
 tlie bankrtipt Gregory was admitted a partner in the liouse. Burton died "on the 
 LTth of April 1770, but the business was still carried on under the old firm of 
 " Burton, Forbes :uid Gregory." 
 
 On the 21st of May 1774, Forbes and Gregory became partners with Charles Cald- 
 -wcU and Thomas Smith, in a banking'-housc at Liverpool, under the firm of Charles 
 Caldwell & Co. aud that partnership continued to the time of their respective bank- 
 niptcies, which haj)])ened in the montli of March 1793, viz. that of Forbes and 
 Gr^ory on the 16th, and that of Caldwell & Co. on the 18th of that month. 
 
 The two houses of Forbes and Gregory and Caldxvell &. Co. were distinct and sepa- 
 rate houses ; Caldnaell and Smith having- no concei-n in the business carried on by 
 Forbes ajid Gregory in London, thoug-h the latter were partners in, and equally 
 cf)ncerned with Caldme/l and Smith in the banking- business carried on at Liver- 
 pool, vmder tlie firm of " Charles CaLkcell & Co." 
 
 Cahhvell and Smith were also in partnership with the defendants under the firm 
 oC i?f/f & Co. wliich company kept a banking- accoimt with the house of Caldwell & 
 Co. at Liverpool ; and tliat house being in advance for the defendants, thej', on the 
 8th of March 1793, made and sig-ned the note on which the action was brought ; 
 and the house of Caldwell & Co. at Livei-po.ol, being indebted to Forbes and Gregory 
 'to a large amount, indorsed tlie note to them. 
 
 This note was given for the balance then supposed to be due from tlie defendants 
 to Caldwell &. Co. but it was afterwards discovered that a sum of 3859/. 1;. with 
 which the defendants were debited for simdr)- bills supposed to ha^'e been drawn 
 by Major (Ca/r/we// &. Ca.'o- agent at Trui'o) was improperly charged; such bills 
 never having been in f;ict di-awn. 
 
 Bower, for the defendants, contended that Forbes and Gregory being partners in 
 the hou'te of Caldwell & Co. must take this note, charged witli ever}- incumbrance 
 whicli it would be liable to in the hands of Caldwell & Co. and therefore that the 
 d'^fendants had a right to deduct the abovementioned sum of 3859/. Is. and to set- 
 off not only the sum of 680/. 8s. lOd. due to t]\em from Forbes and Gregory as the 
 a-ccptors of several bills di-awn by Caldwell & Co. on them ; but also the sum of 260/. 
 I8y. 3/. due to the defendants from Caldwell &. Co. on several bills drawn by Cald- 
 well & Co. on Forbes and Gregory, which were itot accepted by them. Some of these 
 bills had been drawn b}- Caldwell &. Co. for checks drawn upon them by the defen- 
 dants as their bankers ; and the bills not being ])aid when they became due, in con- 
 sequence of the failure of Caldwell & Co- and Forbes and Gregory, the defendants 
 ■were obliged to take them up, and had paid to the severaliiolders of them the full 
 A'alue thereof. The others were either payable to the defendants, or indorsed to 
 them by the respective payees. 
 
 Ersk I NE, for the plaintiffs, contended that Forbes ^vidi Gregory being a distinct 
 a-id separate house, and creditors of Caldwell &. Co. to an amount much beyond 
 that for which this note was given, were not liable to pay the before mentioned sum 
 of 3859/. \s. or the bills which they had ;«3f accepted. For payment of those sums 
 the defendants must look to the estate of Caldwell & Co. who were their debtors. 
 Lord K.EXY0N. This note was given to Caldwell 8c Co. as a banking house, and 
 constitutes an article in the accounts between the defendants and them. They 
 cannot as between themselves raise a distinct account, though they might indorse to 
 a third person. Tlie affairs of the company are in ]jresum])tion of law known to all 
 the partners, and all are equally liable. Tlie defendants send this bill to Caldwell 
 & Co. to cancel part of the debt due to them : Can they, by an act between them- 
 selves, divert tliis money to anotlier purpose, and leave the whole of the defen- 
 d.ant's debt outstanding ? 
 
 Tne plaintiffs, therefore, had a verdict for the balance due to them, after de- 
 ducting the several before mentioned sums of money, and also the sura of 1024/.
 
 
 
 APPENDIX. 25 
 
 ■which it %vn3 admitted that Forbes and Gregory had received of the defendants pre- 
 vious to their bankruptcy, iu the follovvini^ term a motion was made for a new 
 trial, but the court refused to grant a rule to shew cause. 
 
 Grove and Another., Assignees of LiotarrU a Bankrufit., v. Dubois., H. T. ,26 
 Geo. III. A. D. 1796. I T. R. 112. 
 
 THIS was an action for money had and received by the defendant to and for 
 the use of the bankrupt, before lie bceame a bankrupt; and for money had 
 and received t) and for the use of tl\e jjlaintifls, as assig;nees ; to which the de- 
 fendant pleaded the general issue, non assumpsit; whereupon issue was jt)incd. 
 The defendant also gave a notice of set-oii' for money had and received by the as- 
 sigTiees for his use. 
 
 The case came on to be tried at the sittings after Michaelmas Term 1785, be- 
 fore Lord Mr.nsfield, at Guildhall, when tlie Jury found a verdict for lliC )>huntifls, 
 damages 375/. 16*. and costs \s. subject to the opinion of this eourt on the follow- 
 ing case. 
 
 " Tliat the bankrupt, John Liotard, being an underwriter, siibscribed policies 
 ** nlled up with the defendant's name for lii:? foreigi\ correspondents, who were 
 ** unknown to the b.inkruj)!. 
 
 "That losses happened on the policies before the bankruptcy of Liotard ; that 
 ** the dc-tendant paid the amount of the losses to his foreign correspondents afier 
 " such bankruptcy. 
 
 " That the defendant had a commission del credere from his corres]xmdents ; 
 " was made debtor by the bankrupt for premiums ; and always retained the poii- 
 "cles in his hands. 
 
 "Tlic question for the opinion of the court is. Whether, under the notice of 
 *' set-ofl', or under any of the statutes respecting bankrupts, the defendant be 
 "entitled to sot-off'this account with Liotard ? 
 
 " If the Court shall be of opinion thattlie defendant Is entitled to set-off, then a 
 " verdict to be entered for tlic defcniU.nt." 
 
 S. Hayivood, for the plaiatin's, relied upon the 28th section of the 5 Geo. 2.c 50. 
 which requires mutuai credit to be gi\ en, in order to enable tlie defendant to set-oil s 
 which was not the case here ; for the credit was not given to tlie broker, but to the 
 principal ; like tlie common case of insurance brokers, who were nothing more tlian 
 mere agents, and were alw.ays so considered. Tlie case of TVHson and ulliers, assig- 
 nees of Fletcher v. Creighton and another(rt) is in point. That was an action 
 for monev had and received, &c. to and for tlie use of the bankrupt, and to and 
 for the use of the assignees, ami on :m account .stated. Tlie defendant pl.:aded the 
 general issue, non assumpsit, and gave notice of set-off; Tliatthe plaintHiii were m- 
 debtcd to the defendant in 3000/ for losses upon several policies of assurance under- 
 ■writlcn bv tlic bankrupt, and which losses happened before the bankrujitcy. It w :i.s 
 tried before Lord Mansfield at Guildliall, at the sittings after Easter 1 erm, 1782, 
 when the jm-v found a verdict f( r the plaintHfs, subject to the opinion of the court 
 on the following case: "Thattlie defendants had considerable <le;dings with the 
 " bankrupt, as agents or factors to various eorresijoiuleiits. That they paid to him, 
 " or were debited bv him for premiums upon insurance on behalf of those corivs- 
 « pondents. That tliev had credit for the losses as they happ<-iicd, and lor the re- 
 •' tunis of premium. That thev had no rommission del credere. That none ot 
 « the correspondents for whom ihey insured w( re insolvent ; l»uUo all, except one, 
 " thev were in advance, more or les's, on account (.f the policies." In that case llic 
 eourtVere all clearly of opinion that imderthosecircumstances the deferuhmts wete 
 not entitled to sct-<jff any of the suhse(|U< iit losses to an :iction brongl'' '>.v «''t' ="*•*'»>- 
 nees for the recovery of the premiums debited to the defendants by th.- bankrupt. 
 
 The only difference between that case and the present was the circuinxtaiicc ol 
 the defendant's having a commission del credere from his comspon<l< nts. It is ma- 
 t<;rial then to see, wliether any, and what, dillcrcncc such a coiiiniiss.on couUl 
 make, a.s between these ))arties. . 
 
 A commission del crcdrre ml(,dit be considered several ways. It is an undertaking 
 by the broker, for an additional premium to insure iiis jinncipal Hfc'aiu->t a conttn, 
 
 (a) Trin. 22 Geo. 3. // // 
 1>
 
 26 APPENBIX. 
 
 gency, which contingency is the faikire of the underwriter; and therefore it is 
 only to be considered as a collateral security, which vested no such interest in the 
 policy, as tlie broker could have proved under the commission at the time of issuing 
 it ; much lest did it vest any interest in him at the time of making tlie policy. Ex 
 parte Adney. Coivfi. 
 
 The broker could not have brought an action in his own name upon such a po- 
 licy, without averring the interest to be in the principal, («) by which it would 
 have appeared that no credit had been given to him, and consequently that he did 
 not come witliin the meaning of the 5 Geo. 2. c. 30. s. 28. If therefore he could 
 not have brought an action in his own right, and had not such an interest in the 
 policy as would have enabled him to have proved his debt under the commission at 
 the time of its issuing, it is absurd to say that he could set it off to a clear demand 
 whlcli accrued before tlic bankruptcy. Chilton v. JViffin and another, 3 Wils. 13. 
 Goddard v. Vanderhavcn, 3 Wils. 2&2.{b) 
 
 But even supposing an interest vested in the broker, and he could have brought 
 an action in his own right, yet he could not set-ofi'the present demand; for in fact 
 there was no debt existing at the time of tlie banluniptcy. The payment was made 
 to the principal afterwards ; and at any rate the broker's claim could not arise be- 
 fore such payment. This comes du'ectly under the principles uniformly laid down 
 in the cases last cited. No particular event had then happened to fix the broker;, 
 no demand had been made on the underwriter, and refusal. It does not appear 
 upon this case but tliat it was a voluntary payment; and if the defendant paid this 
 sum before the expiration of the time whlcli was allowed to him, he ought not to 
 be permitted to take advantage of his act in prejudice to the rest of the creditors,, 
 and set-off this debt. 
 
 The broker was in the nature of an assignee of a bond, or indorsee of a promissory 
 note. And it was determined in the case of Marsh and another, assignees of May, 
 against C/jai«ier;?,(c) til at a note, indorsed to the debtor of a bankrupt after the 
 bankruptcy, could not be set-off. So here, whatever interest the broker had in the 
 
 Eolicy as against the plaintiffs, it accrued afterpayment of the loss to his principal ; 
 ut that interest, being transferred subsequent to the bankiniptcy, could not be set- 
 off against a debt vested before. At all events, it was setting up a debt in right of 
 another person against a pei'sonal demand upon himself. 
 
 That upon the whole, whatever difference the commision del credere miglit make 
 between the broker and his employers, it could make none between the present par- 
 lies. Tlie transaction between them would have been exactly the same, if no such 
 commission had existed ; audit was too much to contend that a private agreement be- 
 tween two of the parties, without the knowledge of tlie third, should vary the na- 
 ture of the contract, and materially affect and injure the rights of his creditors. 
 
 Smith, contra, distinguished this case from that of Wilson and another, assignees,, 
 against Creighton ; for here, the broker was the only person who had any dealings 
 with the bankrupt; his name alone was inserted in the policy; no other person was 
 known to the bankrupt, who must therefore liave treated with him as principal ; and 
 who, it was more natural to suppose, gave the credit to him, than to any other per- 
 son, to whom, from the nature of the transaction, he must liave been an utter 
 stranger. 
 
 He obser\'ed that this case was very different from that of sureties; fortherethe 
 obligee relied upon the principal ; the whole dealing was witli him ; and he only, 
 looked to the other as a collateral security ; but here tlie broker was liable in the 
 first instance. 
 
 He was then stopped by the court. 
 
 Lord Mansfield, Cli. J. The whole turns on the nature of a commission 
 del credere Then what is it? It is an absolute engagement to the principal from 
 the broker, and makes him liable in the first instance. There is no occasion for the 
 principal to commimlcate with the underwriter, though the law allows the prin- 
 cipal, for his benefit, to resort to him as a collateral securit}'. But the broker is 
 liable at all events. 
 
 BuLLER, J. I remember many actions broug-ht at Guildhall against brokers 
 with commissions del credere; and I never heard any inquiry made in such cases, 
 
 (a) Vide 19 Geo. 2. c. 37. (h) Vide Young and another v. Hockley, 3 Wils. .346. 
 (c) 2 Stra. 1234.
 
 APPENDIX. -27 
 
 whether there had been vl previous demand upon the under\^Titer and refusal ; 
 and I can venture- to say, tliat such is not the practice. It makes no dm'ercnce at 
 the time of makint^ the policy, whether the underwriter knew the principal or not; 
 he trusted to the broker; the credit was given to him, and not to the otlier. 
 
 I agree that tlie notice of set-oti is bad; but tliis loss may be proved and set-off 
 imdei tlie general issue of the 2Sth sccti(jn of the 5 Geo. 2. c. 30. The words of 
 that section are, " That where it sh;dl appear to the cf/mmissioners, ortiie major 
 *' part of them, that there hath been nuitual credits given by the bankrupt and any 
 *' other person, or nmtual debts between the bankriijit andain other person, at any 
 *' time before such person become bankrupt, the said commissioners, &.c. shall state 
 " the account between them, and one debt may be set against another, and what 
 " shall appear to be due on either side on the balance of such account, and no more, 
 " shall be claimed, and ])aid on either side respectively." 
 
 Therefore we see by tliis section of tiie statute that the assignees could legal- 
 ly claim no more than the balance upon tlie account between tlie parties. 
 
 judgment for tlie defendant. (n) 
 
 Bize V. Dickason and Jnother^, Assignees of Bartenshlag^ T. T. 26 Geo. HI. 
 J. D. 1786. 1. T. R. 285. 
 
 THIS was an action for money had and received by the defendants, as .is- 
 signees of the bankrupt, f-ir" the plaintifl''s use. Plea, the general issue. 
 
 The cause came on to be tried at the sittings .after Easter Term, 1787, at Guild- 
 hall, London, before Buller, Justice, wlien the jury found a verdict for the jdaintiff; 
 damages 661/. 9*. IQd. and costs 40^'. subject to the opinion of the court on tlie 
 following case : 
 
 That the bankrupt, John RoJolph Bartenshlag,he\ng an underwriter, subscribed 
 policies filled up with the plauititl 's n:ime for his foreign correspondents, who were 
 unknown to the bankrupt. 
 
 Tliat losses happened on such policies to the amoimt of 655/. 9*. 7d. before thf 
 hankruptcy of Bartcnshlag, and were adjusted by him. That a loss on another policy 
 t') the .amount of 61. Os. 3d. happened hforr the ■■said bankruptcy, but xaat not adjusted 
 till lifter such bankruptcy. 
 
 That tlie plaintifl'pai'd the amount of tlie losses to his foreig-n correspondents after 
 
 such bankruptcv. 
 
 That the plaintiff had a commission */ cm/crc from his coiTcspondcnts ; wax 
 m.ade debtor by the bankrupt for the premiums; and always retained the policies 
 in his hands. . . 
 
 That a divi<lend of lOs. in the pound was declared under the said commission o« 
 the 15th of June 1782. , . .«. , , , 
 
 That at llie time of the bankruptcv there was due from '.lie plamtitt to tlie bank- 
 rupt the sum of 1.356/. Oo-. 3d. Aiid there was due from the bankrupt for the above 
 losses 661/. 9„'. \0d. . , ^ , 
 
 That on the 15Ui M^rcli 1782, tlie philnliff paid to the defendants the stim ol 
 750/. and on the 17tii November 1785, the furilier sum of 606/. Os. 3d. amounting 
 
 to 1356/. Os. 3d. , , ■ , c ff,, r, 
 
 And on tlie 18th November 1785, the plaintiH proved the said sum of 661/. 9s. 
 lOd. under the said commission. . . 
 
 That the plaintiff never received any dividend under tlic comnusHioii »<.r or on 
 account of tiic said losses. , ■ i i .u 
 
 That a final dividend of the edicts of the said bankrupt wiu declared by the 
 said commissioners on tlie 24th diiV of January 1786. 
 
 That on the first of Febniarv 17H6, previous to surli dividend being paid, the 
 pUintlHcaused a notice to be served on tin- <k-fiii<lants. purporting that he \mi\ haul 
 them the said sum of 1.156/. Os. 3d. under a viistahn idea, uillu.ut drl„ct,„_i; il.< re- 
 from the said 661/. 9*. lOd. for Uic aforesaid lox.ses on the said sexcral policies, sub- 
 
 CaJ Vid. £izr v. Uick(Ufon and another, Assi^'neoii of Barttruhlag, post.
 
 ^8 APPEUBlX. 
 
 scribed by the bankrupt, for whom he was del credere to the said foreign corrcspor*- 
 dents, and had jKiid sucli losses according-ly ; and cautioning- them ag-ainst niaking 
 any dividend until he was paid the said sum of 661/. 9,?. lOd. 
 
 Tliat there are now in tlie hands of the said defendants ciTects of the bankrupt 
 more than sufiicient to satisfy the demand of tlie phiintitf. 
 
 The question for tlie opinion of the court is, AVb.et'.ier the plaintifi'is entitled to 
 recover in tliis action ? If the phiiutitf is entitled to recover in this action the 
 verdict to stand. But if tlie court shall be of opinion that the plaintill' is not 
 entitled to recover, then a verdict to be entered for the defendants. 
 
 Smith was to have argued for the plaintifij but MingayiovXhe defendants declin- 
 ed arguing the case. 
 
 TJie court were of opinion that it came within the principle of the case of Grove 
 and Dubois.{a) And 
 
 Lord Mansfield, Ch. J. said, the rule had alvvav's been, that if a man has actu-. 
 ally paid what the law would not have compelled him to pay, but wliat in equity 
 and conscience he ought, he cannot recover it back again in an action for money 
 had and received. So where a man has paid a debt, which would otherwise have 
 beer, barred by the statute of limitations ; or a debt contracted during his infa,ncy, 
 which in justice he ought to discharge, though the law would not have compelled 
 the pa3'ment, yet the money being paid, it will not oblige the payee to refund it. 
 But where money is paid under a mistake, which there was no ground to claim ia 
 conscienccj the party may recover it back ag-ain by tliis kind of action. 
 
 Judgment for the plaintiff- ' 
 
 Mdiorucchi v. R. Exchange Assurance Company, T. T. 1728. I Eg. Abr. 8o 
 
 THE plaintiffs were assignees under a commission of bankruptcy awarded against 
 Sir Justus Bed, and brought this bill against the defendants, to compel them 
 to assign and transfer to the plaintifis several shares in their stock, to which Sir 
 jritjtus Bed was entitled, and which in the year 1720 cost him between 10 and 
 1200/. The defendants bjr answer insisted, that S\v Justus Bed was one of the 
 directors of their company, and that in the year 1720, after his purchase of the be- 
 fore-mentioned stock, the company I nt him about 12,000/. and insisted, tliat they 
 oug-lit not to be obliged to let the phantitts transferor dispose of the interest which 
 Sir Justus had in their stock, without payment of the 12,000/. borrowed, and that 
 by virtue of the act 5 Geo. 1. one account ought to be set-off against the other ; and 
 for that purpose they liad come in as creditors under the commission of bankrupt- 
 cy, and had proved their debt ; there was no pretence that the m.oncy was lent on 
 the security of the stock ; but it was insisted, that on the credit of the great 
 parcel of stock, which Sir Justus had in tlieir company at tliat time, that 
 they lent him this money, and therefore would now stop his stock till payment 
 thereof, or as far as the value of the stock would extend, which now by 
 the great fall of the stocks would by no means sati.sfy their debt ; but it was de- 
 creed at the Rolls, and that decree, on an appeal, affu-med by the Lord Chancellor, 
 that the defendants ought to permit the plaintiffs, the assignees, to transfer and 
 dispose of the stock for the most they could make of it, and that they could not stop 
 or retain the stock for their satisfaction, either before or by virtue of the statute 5 
 Geo. 1. And it was resembled to the case of the lord of a manor and his copy- 
 holders, that the lord could not refuse to admit a person to whom one of the copy- 
 holders had sold his estate, on account of any debt due to the lord by that copy- 
 holder ; that as the lord of the manor in that case, though he had the freehold of 
 3,11 the copyhold estates in him, yet he had no right to any of the copyholders pri- 
 vate copyhold ; so here, though the company had the whole stock of the company 
 in them in their corporate capacity, yet the stock of each proprietor was distinct, 
 and veyted only in himself, wherewith the company had nothing to do fuilher than 
 
 (a) Jnte^ 112.
 
 APPENDIX. 29^ 
 
 they Vrere Invested therewith by the charter, or act of parliament \vhere^vith they 
 were incorpoi'ated and impowcred, or oi-dei cd to transfer each one's slock by trans- 
 fers to be made in the books of tlie comjiany ; \\hich otherwise every ])io]irictor 
 might by deed, orotlierwise, have transferri-d as he thouglit fit. And it was held, 
 that this case differed from that of the HuJson's Bnv Company, decreed /jer Lord 
 Chancellor, assisted bv JRay-nionJ, C. J. and Mr. Justice Price, whore tiu-re was an 
 express bye -law to subject the stork o\' each uicniber to satisfy the debts tiiev should 
 owe to the company. And it was said, that this was not like the case oi' Dtmanary 
 and Metcalf, where a banker lent 300/. on a ])Kdg-e of jewels, and afterwanls lent 
 the same person a farther sum of money on his bare note ; yet he was not admitted 
 to redeem the jewels without payment of the note likewise ; for there it was be* 
 tween two private persons. And it was iicld not to be within the statute of 5 Geo. 1. 
 ■wOiich speaks only of mutual dealing's and accovnUs, which is not this case, as Sir 
 Justus had a fixed permanent interest in the stock, and the money borrowed with- 
 out regard thereto. And the court held this was not like the case of partr< rship, 
 where if anv of the partners borrowed any of tlie partnership's money, his own 
 shai-e should be answerable for it, and he should not be |)erniitted to come into a 
 coui't of equitv, and pray an account of his share of the jj.a-tnership slock, and et- 
 fects, without making- satisfaction for the debt he owed to the paitncrship ; forthie 
 was a transaction between them as private persons, and on a mutual credit and 
 trust ; but the loan of the 12,000/. in the jjrcsent casj to 'i'w Justus, was not in their 
 coqjorate capacitv, wherein only he stood related to them, and held his stock, b-,it 
 was a loan by them as private persons, for which they could not stop his stock, 
 which he held as a member of the company in their corporate capacity. 
 
 Geort^e v. Cla^get and Another, T. T. 37 Geo. III. J. D. 1797. 7 Ttrm 
 
 Rep. Z59. 
 
 ON the trial of this action, which was assumpsit P)r goods sold and delivered fo 
 the amount of 142/. 1*. 9</. before Lord Keiiyon at tlie Guildhall sittings, tlie 
 case appeared to be this : The plaintiff, a clotliicr at Frome, employed Messrs. Rich 
 and Hcapv in London, Blackwell-hall factors, as his factors under a commissiou 
 del credere, who besides acting as factors bought and sold great {luantities of wool- 
 len cloths ontheirown account, all their business being carried on at one warehouse. 
 The factors sold at twelve months credit, and were allowed two and a half per cent 
 On the oOth of September 1795, De'.valle, a tobacco broker, and wlio iiad bet n iu 
 habits of dealing with the defendants, iK)ught several parcels of tobacco of them 
 Cind gave them in paxinent a bill of exchange f)r 1198/. 16*. drawn i)y one I-ialieron 
 Bull and Hcapy on the 24lh of September 1795, payable two months after date to 
 J. Stafford, who indorsed to Dclvalk, who indorsed it over to the defendants, it 
 having been previously accepted by Rich and Hcapy. On the 12th of October 179.'>. 
 the defendants bought a quantity of woollen cloths for exportation <if Rich and 
 Heap;, amounting to 12.37/. 18*. 3(/. at twelve months credit ; the goods were taken 
 out o'f one general mass in Rich and Heapfs warehouse ; Rich and //<-(//;• made out 
 a bill of parcels f.rthe whole in their own names, and tiie def.iidants ditl not know 
 tliat any part of the goods belonged to the plainlHr. Early in NovemI)er 179.\ Rich 
 and Ht-apy became bankrupts ; and afterwards on the 20th of tlie same nxmth the 
 plaintifT gave tlie defendants notice not to pay Rich and Ihapy for certain clotli-i 
 specified, part of the above, amounting to 142/. 1*. 9./. tluy having been his jiro- 
 perty, and having been sold on his account by Rich and Iliapyun commission. Tlip 
 question was whether the defendants were or were not entitled to sel-ofi their <lc- 
 mand against Rich and Heapy on the bill of exchange, on the gi-ound that the de 
 fendants dealt wilii them as i)rlncipals. Lord Kinyou was of opinion that they 
 were, as well on principle as on the authority of Ruhoncv. Williavis ,\ti) and a vcr 
 diet was accordingly found for the defendants. 
 
 (a) Rabon'e jun. V. Wii.i.TAMs, Middlesex sittings aflor Mich. 1785; whi.I. 
 wasthus stated.— Action forthe value of goods sold tothe <hf.n<h.nt by meansofthe 
 house (>f Rahoni- si-n. and C. at F^xeter, factors to the plaintUr The defendant, iIk* 
 v( ndee of the goods, set-ofl'a debt due to him from Rnh„nr and Co. the factors, iijx.n 
 anotiier accoimf, all.gingtii.-it the plaintifl had not appeared at :dl in the tranNaction. 
 and th'.- credit had ijccn given by Rabonc and Co. the factors, and not by tJjc plainlilT
 
 so APPENDIX. 
 
 A rule having' been obtained, calling- on the defendants to shew CRuse why the 
 verdict should not be set aside, and a new trial had, on the autliority of the case 
 of Estcott V. Mihuard, Co. Bank. Laws 236, 
 
 Gi/>/js and Giles were now to have shewn cause against that rule : but 
 
 Erskine and Walton were called upon to su;)port it. Tiiey relied on the cases of 
 Scrims/lire v. Jl.ierton,(a) and Estcott v. Miliuard, as reported in Co. Bani. Laivs, 
 to shew that under the circumstances of this case the principal mig'ht resort to the 
 buyer at once, he iiaving- given notice before actual payment by the defendants ta 
 the factors. 
 
 But a more accurate note of tlie case of Estcott v. Miliuard(l)) having now been 
 •btained from Mr. J. Bulltr, before whom that cause was tried, and read. 
 
 Tile court were clearly of opinion that the directions given by the learned judge 
 on the trial of this cause were right ; and tliat this case was not distinguishable from 
 tliat of Rabone v. Williams. Therefore they discharged the rule.(c) 
 
 Millisent Shijiman v. J. Thomfison^ T. T. 11 and 12 Geo. II. C. P. J. D, 
 
 1738. IVilles'' Reji. 103. 
 
 THIS came before the court on a case reserved at the trial before Mr. Baron 
 Fortescuc. 
 
 The plaintiif 's late husband by his will made the plaintiff and Dr. Morgan (since 
 deceased) his executors. In his life-time he had appointed the defendant his 
 steward by letter of attorney, who after the testator's death received of several te- 
 nants several sums of money due to the testator in his life -time. The plaintiff 
 brouglit this action in her own name, not naming herself executrix, for the money 
 so received. The defendant gave notice to set-off several sums due from the tes- 
 tator to him, which the judge would not permit the defendant to set-off. 
 
 The questions reserved were ; 1st. Whether the plaintiff sould not have declar- 
 ed as executrix ; 
 
 Lord Mansfield, Ch. J. — '* Where a factor, dealing for a principal but concealing 
 that principal, delivers goods In his own name, the person contracting with him 
 has a right to consider him to all intents and purposes as tlie principal ; and though 
 the real principal may appear and bring an action ujion that contract against tlie pur- 
 ch'.ser of the goods, yet that purchaser may set-off any claim he may have against 
 the fiictor In answer to the demand of the principal. Tills has been long settled." 
 Upon this opinion, the rest, being a mere matter of account, was referred. In 
 Bayley v. Morley, London sittings after Mich. 1788, Lord Kenyan recognized the 
 law of tliis case. 
 
 (a) 2 Str. 1182. 
 
 {b) London sittings after Mich. 1783. Action for goods sold. The goods were 
 sold by Farrar a corn factor, who gave no account of the sale to tlie plaintiff, nor 
 made any entry of It In ills books. He was insolvent for some time before, had 
 avoided all dealing for a month, had desired tliat tliere might be no buying in Ms 
 name, and had not dealt with the defendant for a year before, but was then In his 
 debt. There was a verdict for the plaintiff on the ground of fraud. 
 
 (c) The same point was also ruled by Lord Kenyon in Stracey, Ross, and others, 
 V. Decy, London sittings after Mich. 1789. Assumpsit for goods sold ; pleas non 
 assumpsit and a set-oft'. The plalntlft's jointly carried on trade as grocers, but Ross 
 was the only ostensible person engaged in the business, and appeared to the world 
 as solely interested therein. By the terms of the partnership Ross was to be the 
 apparent trader, and the others were to remain mere sleeping partners. The de- 
 fendant was a policy broker, and being indebted for grocery (as he conceived) to 
 Ross, he effected insurances and paid premiums on account of Ross solely, to the 
 amount of his debt, under the Idea that one demand might be set-off against the 
 other. Ross's aftalrs being much deranged, payment of the money due from tlie 
 defendant was demanded by the firm, and was refused by him upon the ground of 
 his having been deceived by the other partners keeping back and holding out Ross 
 as tlie only person concerned in the trade. Lord Kenyon Ch. J. was of opinion that 
 as the defendant had a good defence by way of set-oft' as against Ross, and had been 
 by the conduct of the plaintiffs led to believe that Ross was the only person he con- 
 tracted with, they coidd not now pull off the mask and claim payment of debts sup- 
 posed to be due to i?ojj alone, without allowing the parties the same advantages 
 and eqoities in their defence that they would have had in actions brought by Ross. 
 
 ■Verdict for the defendant.
 
 APPENDIX, 31 
 
 •2(lly. Whether the defendant ousjht not to have been permitted to set-off the 
 money due to him from the testator. 
 
 The Court, after argument, gave judgment for the plaintiff.(fl) 
 
 (a) The reasons given by the Court of Common Pleas do not appear in Lord 
 Chief Justice fF/Z/e.?' papers ;but the same case was; referred to tlie ()])inioii of Mr. 
 B. Furtcsate^l) before whom the cause was tried, and wlio, in the Ea.'itcr term i>re-. 
 ceding, after liearing the case argued by Mr. Makepeace for the defenchml, and Sir 
 T. Abney for the plaintiff, gave the following judgment in favour of the i)laiiUiif. : 
 
 " It is insisted on for the defendant that this money received by hint is vested iu 
 the executrix in auter droit, that as sh6 hatli no riglit of her own tiie action nuist 
 foUowthe right, and that therefore she s]iouldha\c brouglit the action ascxeciitiix 
 and not in her own right. And the case of H-.ntov., cited in 6 Mod. 4. was cited, where 
 it is said if executor bring trover and dcctare that he is possessed as executor to y. S. if on 
 evidence it appear that they were his own goods he sliail be nonsuited and pay costs; 
 and it was insisted thai by a parity of rcascming where llie executor brings an ac- 
 tion in his own name and it appears that they were tlie goods of the testator, he 
 ought to be nonsuited. As to this ; there is no <loubt but tliat the jilaintiflin this 
 case is entitled to all the effects of the testator in auler droit, and all executoi-s 
 are : but if this were a imiversal rule tbattiiercibre the action must follow the right 
 and be brouglit as executor, the executor could in no case bring an action in his 
 own name for any goods or effects of the testator, which in some cxses it is certain 
 that he may. As where the testator's goods are taken out of the possession of the 
 executor, he may bring trover in his own name, (2) because it is an immediate tort 
 to him, though he is possessed of these goods in auter di-oit. By this also it ap])eai-s 
 tliat it is not a necessary consequence that, because if the action is brought in the 
 plaintiff 's name as executor and the goods appear to be his own iic must be i\onsuit- 
 cd, therefore he must be nonsuited if he bring the action in his own name and the 
 g'oods appear to be the testator's ; for in that case it is manifest that he cannot re- 
 cover his own goods as executor, :ukI fails in proving his cause of action which was 
 to recover the goods as the goods of the testator. 
 
 But the true distinction, I think, is this, that where the thing sued for is assets in 
 the hands of the executor or administrator before the recovery, or where tlie cause 
 of action arises in the executor's own time and never did arise to the testator, there 
 the executor may bring the action either in his own name or as executor. And this 
 is laid down as law in the case oi' yenkins and his wife v. Fionihe, Sa.'J^. 207. but bet- 
 ter and more fully reported in 6 Mod. 92, 181. That was an action brought by the 
 husband and wife as executrix upon an indebitatus assumpsit for money had and re- 
 ceived by the defendant to their use as executrix : it is true that the judgment of 
 the court was only that upon beingnonsuited the plaintiffs ouglitto pay costs : but the 
 reason of the judgment was bccaiiJiC they might have brought the action in their 
 own name and not as executri.x ; for wIk rever an executor may have the actiriu iu 
 his own name he shall pay costs. And the case of Eares v. Mocato, Salt. .314. was 
 cited tiiere, and this difference taken, that there were several counts by tlie plain- 
 tiff as executor, one whereof was an insimul coniputasset, and being noubuitcd be 
 
 (1) It seems to have been not unusual at this time to refer the case at first to the 
 judge who tric<l the cause, and aftcrv, ards to the court if the pai-ties were dis- 
 .■<atisfied with iiis opinion. 
 
 (2) So in an action of a.ssumpsit brought on a foreign judgment recovered by the 
 executor, the plaintiff' may declare in his own right, and not us executor ; C/av-Jord 
 V. Whittal, H. 1.J G. 3. B. R. Douf^l. 4. n. — So an executor may maintain an action in 
 his own name agiiinst a sheriff' forthe escape of a prisoner who was in execution on 
 a judgment obtained by him as executor ; Bouajuui v. Walker, 2 Duvnf. & 11. 126- 
 (contr;uj- to Gloxer v. Kendal, 1 Lut::. Sy.'l ; Ucyncll v. Langcastle, Ciu. Jac. 54J ; 
 Broohtu \. Cooke, \ Sho\.\ 57 ; and lVat\. v. Drijyf, 1 Ld. JRayni. 35.) — So where an 
 
 oxecutor pays money which he was not (-ol:,; i to pa\, and afterwardn brings an 
 at tion to recovt-r it back, he may declare i i i.i.-. "vni right ; Mint v. Stotet, 4 JJurrJ 
 & /,'. 561 — And if an executor bring trovr 'jii a conversion in liis own time, or u>- 
 suinpsit for money received aft<r tiic l< :.t;itor*» deatli, and fail, he is liable ti< pay 
 costs though he name himu'lf cX'cytor ; Atiiy v. Heard, Cro. Car. 219 ; Anonynout, 
 1 Vtntr. lO'J; Uui>u\. Hannc. U'P ienip- Jlard-u: 204; Guidtliwaytc v. Fctiie, r, 
 Iktrnf. ik. E. 234 ; ^nd Bdlard v. Spimctr. 7 D. St f.. 358. io which 'lunt cane a con- 
 li-ary tJelcrmioAiiou hi tvtMrtV v. Kyxm-l'^r.^ 4 i> & k- "277. v:m «vet -rjlejl
 
 32' APPENDIX. 
 
 paid no costs, because there was no wtTt' cause of action, bnt anew action asceHain- 
 ing the ancient cau.sv , wliich is still a debt of the testatm's. And in the case of 
 yenkitii V. Ploinbe, as appears from Salkeld, this distinction of insimul computasset 
 is also taken ; and it was Siiid that if the defendant received this money by the ap- 
 pointment of the plaintiOi it was assets immediately, if without his consent yet the 
 bringing' of the action is such a consent that upon judgement it shall be assets im- 
 mediately before execution, which otherwise it would not be until after execution ; 
 and the reason is because it is recovered at;-ainst a person who never was indebted 
 to the testator, and the ,>riij;inal debt was discharged. 
 
 To apply this to the present case ; here is money received by the defendant since 
 the testator's death, and tlu rcfore it could not be received to the use of the testa-' 
 toi', but mast be received to the use of the executor. The executor has consented 
 bv bringing the action, and the money is assets immediately upon the judgment. 
 It is c^uite a new debt created from the defendant to the executor since the death 
 of the testator, and anew cause of' action which was not subsisting before. The 
 defendant was never indebted to the testator for this money, and the original debt- 
 ors, tlie tenants, are distiiarged. No douijt jiad the action been brought against 
 the tenants, it must have been brought against them by tlie plaintiff as executrix, 
 because it was a debt as to tliem subsisting in the testator's life -time, and no new 
 cause of action arising to the executrix. 
 
 It is said that, as this case of yenkbis v. Plombe is stated in 6 Modern, Pcuell J. and 
 Gould J. doiibted : but whatever they might have done on the first argument, it is 
 plain they were satisfied afterwiu-ds ; for in page 182 it appears that the judgment 
 was given per totam curiam. 
 
 It is said that the defendant had an authority by letter of attorney to receive the 
 testator's rents, that this authority did not determine with the testator's death, and 
 that therefore as Ihe defendant received it by the authority of the testator it is mo- 
 ney had and received to his use, and it shall not be presumed to have been received 
 by the consent of the executor. But I think, as this is a naked authority and not 
 coupled with any interest, it coidd not subsist after the testator's death. In Combers 
 case, 9 Pep. 76. b. it was resolved th:it where a4pcrson luis authority as an attorney 
 to do an act, he must doit in the name of him who gave the authority ; for he ap- 
 points the attorney to be in his place and represent his person ; and for that reason 
 the attorney caniiot act in his own name, nor do it as his own act, but in tlie name 
 and as the act of him who gave the authority. And if this be so, it is impossible to 
 say that this defendant received this money as attorney for the testator or that he 
 represented his person, in regard that the testator was dead ; it is the executrix 
 only who represents the person and stands in the place of the testator. 
 
 This has been likened to the case of an assignee of a bankrupt, of whom it is said 
 that though the property of the bankrupt's goods or debts be vested in him, yet he 
 Tnust sue as assignee ; and no doubt he must for all debts due to the bankrupt. But 
 if goods be taken from the assignee, or money received from a debtor of the bank- 
 rupt after the assignment, I do not know that it has been any where adjudged that 
 an action brought in his name would be ill. But be that as it will, this is the case 
 of an executrix and not of an assignee of a bankrupt, and it was (I think) plainly 
 and clearly adjudged in the case of ytnkins v. Plombe that an executor in such case 
 may bring an action in his o\a\ name ; and I do not find that it was ever adjudged 
 to the contrary. 
 
 With reg-ard to the case of Chapman v. Darby, Carth. 232, where it was holdcn 
 that, where the plaintiff brouglit assumpsit for so much money had and received to 
 his use as administrator, tlie promise was not ill laid ; no doubt it is so, and so al- 
 lowed in yenkins v. Plombe that the plaintiff may bring the action cither way ; so 
 that this case of Cliapman v. Darby does not prove that tlie administrator may not 
 bring the action in his own name, but only that he may do it as administrator ; and 
 no doubt he may do it either way. As to the case of Curry v. Stephenson, Carth. 335. 
 Holt Ch. J. took exception to the declaration tliat it was not well, because the mo- 
 ney was received after the death of the intestate, and then it was received to the 
 use of the plaintiff generally, and not as administratrix; and the point was, that 
 though it was received by the defendant after the intestate's death, yet it was be- 
 fore administration granted ; and this is t!ie reason on which the book seems to gp 
 why it was disallowed, which is not the present case. 
 
 As to the set-off; we cannot consider the convenience or the inconvenience on 
 one side or the other, but must go according to the act ; for the stat. 2 Geo. 2. c. 22. 
 s. 13. says, or //" either party sues or is sued as executor or administrator where thei-e 
 are mutual debts between the testator or intestate and either party, one debt m.ay 
 be set against the other , so that it is confined by the statute expressly to cases 
 where the suit is as executor or administrator. And therefore in the present case 
 the suit not being as executor, I think it is not within the statute, and that the debts
 
 AfPENDlX. 33 
 
 ColliTtB x.Collins, T. T. 32 Geo. II. A. D. 1759. 2 Burr. 820. 
 
 THIS WHS an action of debt upon bond. 
 Tlic condition iippe.ared, upon Oyn, to be, "to p.ay tlie plaintiff an annuity of 
 ♦' 10/. a year during' his life ; and likewise to maintain him in meat, drink, washing 
 "and lodg-ing-, in the dwcUinp^-liouse at CnindaU-End, for and during his Life?* 
 
 To thi.? declaration, the defendant pleaded (by leave) several pleas. 
 
 As to the ]Kiyment of the annuity of 10/. per n/i/i!i/7i.— There was a pica of a stt- 
 off ; (viz. that only 69/. is due to tlie j)laintilf on account of the said annuity ; and 
 tliat tJie plaintiff owes him more than 60/. viz. 500/.) 
 
 As to the maintaining the piaintifi'. Sec. — There was a jilea that the plaintiff left 
 the house voluntarily, and did not board and lodge in the house : so that lie (the 
 defendant) was not obliged to board, wasli and lodge him. But the dcfend:uit avers 
 tliat he was always ready to inaintaln him, &c. at and ix the house. [V.infra^ 
 
 Tlie plaintiff demurs : and the defendant joins in demurrer. 
 
 The latter plea depended upon the words of the condition ; which was — "Tliat 
 " \f Joseph Collins the younger, his heirs executors or administrators, do and shall 
 " well and truly pay or cause to be paid'unto Joseph Collins the elder, and liis as- 
 " signs, yearly and every year during his life, one annuity of 10/. of lawful money 
 '* of Great Britain, clear of all taxes, he. on tlie 25th of March and 29th of Septem- 
 " Ijcr yearly ; and if the said yoseph Collins the younger, siiall find, provide and allow 
 " to and for the 3\Cid Joseph Collins the elder, good and sufficient meat drink wash- 
 " ing and lodging i.v the dvielling house at CrunJull-End idovcaaid ; tlien this obliga- 
 •' tion to be void ; but if default shall be made in the panncnt of the said annuity 
 " of 10/. or any part tlicreof, at or upon any or either of the days abovementioncd 
 " f )r tlie payment thereof; or if he the said yoseph Collins the younger, shall ne- 
 " gleet or ref.ue to maintain and keep the said yoseph Collins the elder, during his 
 " natural life as aforesaid ; then, and in either of the said cases, to be and remain 
 *' in full f u'cc and virtue." 
 
 The defendant (liaving leave to plead several pleas &c.) pleaded a set-off (as 
 19 before mentif.ned) to the former part of the condition, which was for payment of 
 the annuity. And as to the latter, lie pleaded that tlie house at Crundall-End was 
 tlie house where the said yoseph Collins the younger, dii-elt, and ever since has dwelt, 
 with his f:imily ; and that he did admit the said yoseph Ccllins the elder, and re- 
 ceive him into tlie said house ; and did until his departure aftcrmentloncd, find 
 provide and allow to the said yoseph the elder, meat, drink &.c. [in the >vords of 
 the condition :] but that he the said yoseph the elder, of his own accord, departed 
 from tlie said house at Crundall-End, and has ne^-er yet returned, to be there provid- 
 ed with meat, dririk, &c. fut supra; J nor hatii ever required to be provided wit!» 
 any, or to havcfany allowed, 'jheke. And the said y&j<-/»/i tiie young-cr, has «/- 
 
 due from the testator to the defendant cannot be set-off against this plaintiff" in an 
 action brouglit by her in her own name, and not as executor. And supposing this 
 to be 80, it was urged as one rea.son wliy the action liere ought to have been 
 brought by the jilaintiff as executrix ; but this statute will not alter the law as to 
 tliat point from what it was before ; and if the statute lias not ivmedied all the in- 
 conveniencics, we must take it as it is, and cannot (1 think) extend it further. 
 
 So the postca must be delivered to tlie jilaintift", and slie nuiat luiNe her judg- 
 ment." MS. Mr. Justice W. (tiien Mr. Baron) Fortescue. 
 
 To the above Mr.'B.Forfcjcue afterwards added this note ; " N. B. The court of: 
 B. C. on a ca.se made were of the same opinion as to both points." (1) 
 
 (1.) The s.inie point, relative to the set-off, has been since determined by the 
 court of King's Bcncii in two cases, Kihin^ion v. Stevenson, East. 17M, on domiir- 
 rtr; and Tegetmeycr v. Lumlcy, Tr. 25 Ceo. 3. on a motion for a new trial. Vid. ' 
 J>o*t.2Gi. But a debt due to the d( f n.lant as surviving partner r\\:\\ be net-ofl 
 ag"dlnst a demand on hiui in hi:) owni riglit ; Slifpcr v. Slidstone, 5 Durnf & E. 493 » 
 & e coiiverso a debt due from the piaimiff us suniving partner to the defendant 
 way be Het-off against a debt due from the d'.-f.ndaiit ^o «ho plaintiff ilJ lU5 ovrr 
 yjgbt". frerKh v Andrndts 6 D. It K. 382.
 
 34 APPENIJIX. 
 
 ways bepi ready to have (jrovidccl the said yoseph the elder, with meat, drink, &c. 
 Cut supraj AT and in the said dwellhig-housc, \i\\c\\a.i}i not departed, or would have 
 retm-ned ihither : but tiiat he always has refused and still docs refuse to returtii 
 but has continued absent from thence. Therefore he could not provide him with 
 meat, drink, &c. Cut supraj at or i^ the said diveHing-house. 
 
 To tliis plea tlie plaintilF demurred ; and the defendant joined in demiirrer. 
 Mr. Serjt. Foolc, on behalf of the plaintill', aig-iied tliat this case of an annuity or 
 yearly payment does not fall within the statute of 8 G. 2. c 24. § 5. concerninsf set- 
 offs ; because the action i^ not brou^-lit for a sum complete and certain, but for a 
 part of a growing sum payable /or life,- whcreoffuture payinents will be continual- 
 ly be coming tlue. 
 
 Now if tile judgment be here entered for the remainder (as that act directs,) It 
 passes in rem judicatam ,■ and the plaintiff' cannot recover any more, on any future 
 default of {)ayment upon the same bond. 
 
 By sec. 4. of this act, the provision forscttingmutual debts one against the other, 
 ■svas looked uj)on as highly just and reasonable at a// times : it is therefore provid- 
 ed that the clause in 2 G. '2. c. 22. " for setting nmtual debts one against the 
 other" shall be and remain in full force forever. 
 
 Section 5. of this act of 8 G. 2. c. 24, provides *' that by virtue of the said clause 
 " in 2 G. 2. c. 22. (which is tlicreby made perpetual,) mutual debts m.ay be set 
 " against each other, either by being pleaded in bar, or given in evidence on the 
 " general issue, in the manner therein mentioned, notwithstanding that such debts 
 " ai-e deemed in law to be of a. different nature ,■ unless in cases wliere eitlier of the 
 " said debts shall accrue by reason of a penalty contained in any bond or specialty; 
 V and in all cases where either the debt for wJiicli the action hath been or shall be 
 " brought, or the debt intended to be set against the same hath accrued or shall 
 " accrue by reason of imy such penalty, the debt intended to be set-off shall be 
 "pleaded in bar, in which plea shall be shown how much is truly and justly due 
 " on either side : and in case t)ie plaintiff' shall recover in any such action or suit, 
 "judgment shall be entered for no more than shall appear to fae truly and justly 
 " £"''. ^? ^^^^ plaintiff, after one debt being set against the other as aforesaid." 
 
 This is not a bond conditioned for performance of covenants or agreements con- 
 tained in any deed or writing : it contains a quite different and distinct condition- 
 Tlie present action is an action of debt upon a bond conditioned to pay an annuity 
 and maintain a parent. 
 
 Mr. Serj. Hewitt contra — This is a new case. 
 
 The setting-off of mutual debts arises on 2 G. 2. c. 22. sec. 1.3. (which was a tem- 
 porary act,) and on 8 G. 2. c. 24. gee. 4, 5. (which makes the former perpetual.) 
 
 This last section (§ 5.) provides, generally " That luherever the debt arises upon 
 *" a hand or specialty 'uith a penalty, and accrues by reason of such penalty, a set-off 
 ** maybe pleaded," My brother Foole says, " It extends only to cases where the 
 " debt is a sum certain." But the words of the act are general ,- and are not at all 
 confined to sums certain. And the plaintiff mov afterwards recover, for subsequent 
 deftiults ; notwithstanding tlie prior judgment: "for \.\\c penalty will always remain a 
 4Hty. 
 
 Ovvr plea covers the whole demand. 
 
 IMr. Serj. Poule was beginning to reply. But an observation having been made 
 by Mr. Just. Denison, upon t!ic latter part of the condition ; 
 
 Mr. Serj. Hewitt desired it might stand over till next paper-day ; (intending to 
 make a motion, in the interim, for leave to amend.) To which reqiiest tlie court 
 agreed. 
 
 Ultepius CoNciT^iu.^r. 
 On the next paper-day, (26th June,) Mr. Serjeant Poole proceeded in his reply .- 
 (Serjeant Hewitt not having moved to amend.) He argued tliat a set-off could 
 not be pleaded under this act : for this act is general, and lias no such provision 
 as tliere is in the act of 8, 9 W. 3. c. 11. sec. uh. viz. <' That the judgment .sliall 
 " sta?id as security." And therefore if the plaintiff' should now recover judgment, 
 there would be an e7id of the bond ; and there would remain no secui-ity at all for 
 /«<Mre payment of the annuity. 
 
 And he agreed with Mr. Serjeant Hevsitt, that this is a neta case
 
 APPENDIX. 3^^ 
 
 Mr. Serjennt Hewitt insisted, that this act of 8 G. 2. c. 24. differs materially 
 T-om 8, 9 rr. 3. and from 4, 5 Ann. c. 16. sec. 13. for bringing- in the money, and 
 having- the bond discharg-ed. The present act shvs " That the pi aintiiV shall r«. 
 •« cover the sum truly and justly due, and no more." And my brother Poole says, 
 ♦• That after the matter is passed /n rem ju.iicatam, tlie p\x\n\\^' cannot a/teraa'rds 
 " recover any more upon the same bond." But I an.swer, tiiattlu- plainiitf -would 
 be at liberty to bring an action for any further breach .- for the present judgnnent 
 (upon the set-off) would not be for the penalty, but only for the i-u^w" m//)' and 
 justly due, and no more. 
 
 Lord Mansfield — These clauses in 8, 9 W. 3. c. 11. and 8 G. 2. c. 24. arc ct- 
 tremely henejiclal to the subject. 
 
 Therefore his lordship chose, he said, to consider of it ; and did not mean to 
 give his opinion at present. Hov.-ever, by way of breaking case, he entered into 
 an explication of the acts , which he thought'ought to bo considered all together, 
 us being made in pari materia. So tliat stoppage or setting-off must have tllfc skmfe 
 ellect, under the 8 G. 2. us payment had uneler 8, 9 W. 3. 
 
 Therefore he thought, (at present,) that it was most beneficial to the sub- 
 ject, that in the case now before tlie co»u-t, the set-off *Aow/(/ be allowed. But he as- 
 sured Serjeant Poo/<', that if they should be of that opinion on deliberation, he 
 should not, as it was a new case, be caught by his demurrer ; for that they would 
 give him leave to withdraw it, and reply. 
 
 Ci'R. Advis. 
 
 Lord M.vxsFiELD now delivered the resolution of the court ; viz. That they 
 were all (upon deliberate consideration) unanimously and clearly of opinion (as it 
 ."Struck him before) that this is a case within 8 G. 2. c. 24. sec. 4, 5. Where mutual 
 debts maybe set-off, just as much as actnai pay^nent of liie money might have been 
 before. 
 
 He said he would consider how tlie law stood, before the acts of 2 G. 2. c. 22. 
 and 8 G. 2. c. 24. and under the act of 8, 9 JF. 3. c. 11. 
 
 The act of 8, 9 W. 3. c. 11. is entitled ♦' An act for the better preventih^ frivtf- 
 " lous and vexatious suits." The last clause of it is a provision intended to itifeeV 
 the case of non-performance of covenants and agreements secured b\ bonds or in- 
 dentures ; and which covenants or agi-eements are to be \yi^rfovn\cd' nt different 
 times, or the monies paid by instalments, ike. 
 
 Before that act, a plaintiflcoidd only assign one breach, upon surli'bond or ifl- 
 dentm-e. And if the defendant could prove that the ivho/c dcht wan paid, thcrtr 
 was an end of the matter. But if the defendant had only \y.C\d part of the debt,' 
 and not the vhole, then the judgment was taken for the ii/io/i' penalty : and tliis 
 judgment for the ti'/io/r/)e7ia/r/ stood as a security for liu- rm./u^ of the demand" 
 which remained unpaid. So that the judgm(-nt stood for the iiilwle penalty, though' 
 only^arf remained due; and the plaintifl" was ijustly t-ntitlcd only to that, and no 
 more: which often forced the defendant, in such a case, into expensive suits iti' 
 equity for relief. 
 
 To prevent which, the last clause of this art of 8, 9 W. 3. c. 11. provides 
 " Tl'.atin all actions, in any of his mujest\'s courts of record, mxin any bond or 
 " bonds, or on any penal sum, for non-i)erformance of any coven.uils or agreements 
 " in any indenture deed or writing contained, tlie pliiintHVor plaintiHs muy assign 
 " as many breaches as he or they shall think fit ; and the jury shall assess damagfes 
 •' and costs on so many of them" as the plaintiHshall prove to h.-ivc been broken -.^ 
 " and the like judgment shall he entered on such verdict, as had been usually done' 
 " in such like actions." Then there is a suitable provision forsngt,'-esting several* 
 breaches, where the judgment passes by default, confession f>r on demurrer. Then 
 the act provides, " That if after ju<lginenl and before execution executed, the' 
 " defendant shall pav into court all the damages and costs on the several breaches 
 " a-ssigned and found, \x stay ff execution u\\ the judgment shall be entered tipon' 
 " reconl : or if, byre:i.son of any execution executed, the plaintiff shall he fully f^fd 
 " and satisfied all such damages and costs, and the charges of such cxectilirtn ; then 
 "the body, lands or goods of the defendant shtill he di.srharged of su<h execution . 
 " which shall likf-wise he ent<r( d upon record. Btil yet, in each ra«i-, the J' •'''■•- 
 " MEVT shall remain as a further senirity, to answer damnge.s to Iho plailttifV foi* 
 "/Kfwre breaches ; upon which ih'- plniiitirt' may linre a tfrV^/Arfrti on Ihe judg'-
 
 36 APPENDIX. 
 
 " ment.sugg-estin^ ochey breaches ; n-liereupon tliere shall be the like procrcding' as 
 " was in the action of debt upon the bond, for assessing- damati-cs on such breaches ; 
 " and on payment or satisfaction, as before, of such/M««rc damages costs and charo-es 
 « as aforesaid, all further proceeding shall be again stayed ';' unii so toties quotics , 
 " and the defendant, his body lands or goods shall be discharged out of execution. 
 f as aforesaid." 
 
 A very beneficial remedy, and a very just one to the subject, this ia. The Judg- 
 ment is to be forthe whole petudty, and is to reviain as nfurt/ier sccuriiv ,- ihouf:;h 
 EXECUTION is to be stayed on pi^yment of the sum due, &c. So tliat ti'ie pcnaltj) 
 is a security for the debt interest and costs, upon aX\y future breach. 
 
 Before this statute, the actual PAVMENTof money in discharge of the demand, 
 V^as exactly upon the same foot, as the set-off of a debt is novj put upon ; and a 
 plea of PAVMENTof a sum of money sufacient to discharge the i^jhole demand wae 
 just the same then, as a set-off of a debt large enough to balance the -ujAo/e "de- 
 mand, is now .• that is to say, it was ii full ov^n-f r to the plaintiff's demand ; and 
 he could have no judgment at all against the defendant. 
 
 But if it had come out, that there had been a failure of />ffj7?7e«f of aRv/;art of 
 the plaintiff 's just demand, the plaintiff would have been entitled to take his Judg^ 
 MEN t forthe wAo/e/)e«fir/i'y ; (Though execution was to be stayed on payment 
 oj the damages already incurred andcojf^ .•) and this judgment for the ■vihole penalty 
 was to stand as a security, to a.T\s\\'(ti- future breaches. 
 
 But the payment here intended was to be an actual payment. ¥ov stoppage, or 
 eetthig-off debt against debt, was not then equivalent to actual payment : but cross 
 actions must at that time have been brouglit, forthe respective mutual debts. 
 
 Since these two vei-y beneficial acts of 2 G. 2. c. 22. and 8 G. 2. c. 24. stoppage, or 
 ^e«/w|'-o/" of mutual debts, is become equivalent to actual payinent : said a balance 
 shall be struck, as in equity and justice it ought to be. 
 
 At common /uto, before these acts, if tlie plaintiff was as much, or even more 
 indebted to the defendant than the defendant was indebted to !iim, yet the defen- 
 dant had no metiiod to strike a balance : he could only go into a court of equity, for 
 doing what is most clearly just and right to be done. ' 
 
 The 2 G. 2. c. 22. was made to answer this just and reasonable end ; and enacts 
 generally, "That where there are mutual debts between the parties, one debt may 
 *' be set against the other." Upon which act of 2 G. 2. doubts about the different 
 natures of debts have arisen ;the 8 G. 2. c. 24. was thereupon made : the 5th section 
 whereof is a general provision ivithout exception. So that the objections whick 
 iiavebeen here made, on the part of the plaintiff, are made by construction only. 
 
 It is objected, first, •' That this is not an action brought upon a penalty for non- 
 " performance of an agreement or covenant contained in any indenture deed oc 
 ** ivriting.'" 
 _ This is an agreement between the parties, and an agrceinent in i-riting : the condi- 
 tion of the bond is an agreement in 'jjriting ,- and people have frequently gone into 
 courts of equity upon conditions of bonds, c? being agi-eements in writing, to have 
 % specif c performance of them. 
 
 It is said that if the plaintiff should take his judgmcjrt upon this act of parlia- 
 onent, it would no? he a. judgment for tiie penalty, but a judgment only f.r tlie 
 sum due, and no more ; and that after the matter has once -passed in rem judicataitt^ 
 the plaintiff cannot afterwards recover any m.ore upon this bond, wliatevcr may be- 
 come due by future non-payments ; for that here is «o /Jrw/.S70?: " that the j'udg- 
 " men shall stand as a security for future payvients,"" as there was in the act of 
 8, 9 W.3. c. 11. made for the better preventing- frivolours and vexatious suits. 
 
 The judgment is indeed by this act of 8 G. 2. directed to be entered " for no 
 "more than shall appear to be justly and truly due to the plaintiil':" But it is 
 clearly within the words and meaning o{ the act,' that the penalty is to remain as a 
 security against future breaches, in this case of a >sef-o/ pleaded, as mucli as it 
 would have done upon the act of 8 9, W. 3. c. 11. \f payment \x.xd been m^id^ 
 agreeably to the directions therein contained. 
 
 But as this has not been before settled, " That a set-off may be pleaded in such 
 a " case as this, where the conditlonis for the pajTnent of an annuity or growing sum.** 
 It -would be hard to bind the plaintiff down strictly to Jiis demurrer. Therefore my 
 Ibrqther Poole may move to ivitkdraw tlie demurrer, and to reply in aproper manner ;
 
 APPENDIX. 37 
 
 which v,\\\ give the plaintiff an opportunity of disputing the debt pleaded by way 
 of set-off, if he thinks proper. 
 
 Which Mr. Serj. Poo/c moved accordingly : and the court granted it; but added 
 ^Rt it 6hould be upon payment of costs. 
 
 Stdcey Ross Sc al. r. Decy. M. 1789. Esp. Cases, 469, 
 
 TT was an action for goods sold and delivered : Plea of set-off. 
 **■ It appeared in evidence, that the plaintiffs had entered into a partnership as 
 grocers ; and it v^'as agreed tliat J^oss should keep the shop in his own name only ; 
 under those circumstances he dealt with the defendant for the partnership goods, 
 for whicfi this action was brought. 
 
 The defendant had done business for the plaintiff i?o** on his own account, and 
 not on account of the partnersliip, to a greater amount llian the demand now made 
 against him by the partnership, and this he ofiered to set-off. 
 
 It was opposed on the ground of tlie demands accruing in different capacities, 
 that so it was inadmissible. 
 
 Lord Ken- YON was of opinion, that the set-off was good; his lordship said, 
 the plaintiffs had subjected tf.cmselves to it, liy holding out false colours to the 
 world, by permitting Jtoss to appear as tlic sole owner ; that it was possible Uie 
 defendant would not have trusted i?ow only, if he had not considered the debt due 
 to himself as a security against a counter-demand. 
 
 Erskine observed, that the defendant h;ui thereby a double advantage ; for, if he 
 dealt with Rosf as the only partner, and had had a demand against tlie partnership 
 account, he miglit have maintained an action against them all ; yet here he wa.s per- 
 mitted to consider Rots as tlie only partner. 
 
 Lord Kf.syok admitted this consequence to follow from the fiiUary held out to 
 the world by such as stand in the situation of sleeping partners, but allowed tlie 
 set-ofl'to the extent claimed ; and the defendant had a verdict. 
 
 Jaqueaw IVithy, H. T. 27 Geo. III. J. D. 1787. 1 T. R. 557. 
 
 1^ ASE for money had and received, money lent and advanced, &c. Pica set-off 
 ^ 340/. upon a judgment recovered in Trinity \x-rm, in the 22d year, &.c. l)y the 
 defendant against the plalnlifl' in this court, wfilch Is still in force and unsatisfied. 
 
 The plaintiff in his replication admitted the judgment, &.c. but said tliat the 
 defendant in Mic/iaehnai term in the 23d year, &:c. in order to obtain s.atlsfuctlon 
 of the said judgment, cliarged Iilm in execution of the said judgment in tlu- cn.st.xly 
 of the marshal of the MarshaUea, Sec. and kept .ind detained him in siicli custody, 
 andin execution of the said judgment, until the 6tl» of February 1783, wlien lie 
 was by and i-^^ith the consent, privity, autltority, ar.d licence oftlie defendant, and by hi.t 
 order and direction, released and enlarged frovt- and out of the said custody, and 
 wholly discharged from the Baid execuilon at the siutof the defendant of aj>d upon 
 the said judgment. 
 
 Rejotjuier, That the plaintiff on the 28th of February, 1783, at Ids instance and 
 request, was by and with the consent, privity, authority and licence of the defen- 
 dant, and by his order and direction, released atid enlarged from and out of the said 
 custody, i«:. and dlscliarged from the said execution of tlie said siiil of the (lefen- 
 dant of . ind upon the said judgment so recovered, &.c. for and in consldcrMlon of 
 the plaintHf'9 then and there niakingand delivering to the defendant a certain writ- 
 ing obligatory, bearing date the CSth of Febni.ary, 1783, in 6H1/. wliii a condition 
 to satisfy thejiidgmcnt either by instalments or by an aiinuily, ancl also for and in 
 consideration of a warrant of attorney, executed in l!ie plaintiff on the '.'HI h of 
 February 1783, given to the defendant to confess judgment on the said writinR 
 obllgatoiy in the court of our lord the king of the i)eiKh. That after ward> ami 
 within twentv <lavsof the exerution of the said writing obligatory, .and warrant 
 of attorney, (to v/it,)on the 18ih day of Miirrh, 1783; llie defindanl, according to 
 tlie form of the st:itutc, can.sed a m<'morial to he enrolled In thancei-v, of and con- 
 cerning an anniiltv secured by a bond and warraiU of .attorney to confeits judgment 
 ihcreon in his majesty's court of King's Hcncli, executed by tlir plaintid, m »!•«: 
 p^nrd sum of m\l In rons'd'-mtion of M ■• turn of :;40/ JOr p»id to ihcpUintifl
 
 38 APPENDIXr 
 
 by the defendant for one annuity of 50/. to be paid to the defendant by the plaintiff 
 
 during his life. That the plaintiff, after the granting of the said annuity to he 
 defendant, nriade default of payment therein. And theieupon the defendant, by 
 virtue of the said warrant of attorney in Hilary term, in the 26th year, £t.c. signed 
 judgment upon the said writing obligatory against the plaintiff in the court of 
 Common Pleas. And afterwards in the said Hilary term sued and prosecuted out 
 of the same court a writ oi fieri facias y directed to the sheriff of Middlesex, who 
 executed it. That afterwards in Easter term, in the 26th year, he. the plaintiff 
 obtained a rule in the court of Common Pleas, to show cause why the judgment 
 signed by the defendant against the plaintiff, and the writ of execution issued 
 thereon and executed, Scc.and all proceeilmgs in that cause subsequent to the said 
 judgment, sho'.dd not be set aside, and the bond and warrant of attorney broiight 
 into court and delivered up to the i)laintiff to be cancelled, and the g.-ods &c. 
 levied under the execution, restored to the plaintiff, and why the defendant should 
 not pay the costs of all these proceedings ; which rule was made absolute in the 
 same E^jster term. That the said coui't of Common Pleas so cideredthe said writ- 
 ing obligatoi-y and warrant of attorney to be delivered up to be cancelled by reason 
 of a inistake, irformality, and irregularity, in the said ■memorial, that is to sa), by 
 reason of the said warrant of attorney being therein expressed to be a warrant of 
 attorney to confess judgment in his majesty's court of King's Bf nch, instead of his 
 majesty's court of Common Pleas, and by reason of the consideration of the said 
 writing obligatory and warrant of attorney being expressed to be for 340/. 10*. paid 
 to the said plaintiff, instead of expressing it to be in consideration of the said judg- 
 ment for that sum. 
 
 To this rejoinder there was a general demurrer, and joinder In demurrer. 
 
 Morgan was to have argued in suppoit of the demiu-rer, but the court desired to 
 hear the other side. 
 
 Wood, contra, admitted as a general position, that where a person is once taken 
 in execution and discharged, he cannot be sued again for the same debt. But he 
 contended that that was not universally true, and that vmder the particular circum- 
 stances of this case, the debt due from the plaintiff to the defendant was not ex- 
 tinguished. An execution against the person of a defendant is not in all cases a 
 satisfaction of a debt : for if he escape out of custody when cliarged in execution, 
 Jt IS clear that an action may be maintained on the judgment, because it is by the 
 defendant's act only that he obtains his discharge. The same rule likewise holds 
 if that discharge be obtained by fraud. Now in tliis case the discharge gi-anted by 
 the defendant was not voluntary, but it was on a consideration which has failed; 
 aiid therefore the dischiu-ge cannot operate as a bar, or extinguish the debt. This 
 IS like the case where a judgment on a simple contract is reversed by a writ of 
 error, the sim;5le contract still remains, and an action may be maintained on the 
 assumpsit. So if an execution be set aside for irregularity, the plaintiff may sufe out 
 another. 
 
 AsHHURST, J. There must be judgment for the plaintiff in the present case ; 
 I cannot pretend to sav how far a court of equity would interfere in this case ; and 
 indeed tlie defendant .seems to have some ground for claiming relief. But at all 
 events, the discliarge from the execution is certainly a discharge at law. I know 
 of only one c ise where a debtor in execution, who obtains his liberty, may after- 
 wards be taken again for the same debt, and that is where he has escaped ; but the 
 reason of that is because he was not legally out of custody. But where a prisoner 
 obtains his discliai-ge ivith the consent of the party who put him in e-^ecut'wn, he 
 cannot be retaken. In the present case, the plaintiff trusted to the other security, 
 and therefore he cannot resort to the first security again. 
 
 BuLLER, J. Tlie counsel for the defendant has relied only on the equity of 
 the case ; and that advantage has been taken of a mere slip. It is not material for 
 us to consider whether a conscientious man w^ould have taken this advantage ; the 
 truth is, there is a flat objection under an act of parliamcnt(rt) of which the 
 plaintiff is entitled to take the benefit. The facts are, that the plaintiff, being in 
 execution at the suit of the defendant, was discharged by him on giving a bond 
 and warrant of attorney, which security, at the time it was given, was good. 
 Therefore the plaintiff was not guilty of any fraud. But the objection is, tliat the 
 
 (a) 17 Geo. 3. c. 6.
 
 APPENDIX. 39 
 
 requisites of the act not havin_^ been complied with, the security is void. That 
 howevci- arose from the neg'lcct of tlie dti'eiulunt lilniscif, in not cdinplying \vitJ» 
 the directions of the statute. If the security were good at ihe time of the diseharpe, 
 the defendant cannot have recourse to the judgment again, because that was waived ; 
 and the debt luiving- been once extinguished, cannot be revived again. This is not. 
 a new question. The case of Vigcrs and Jlurich,{a) goes the whole length o\: 
 this ; for it shows, that if a defendant has brcn once discharged out of execution 
 upon terms which are nut at'icrwards comi^lied with, the plaintitV cannot resort tc> 
 the judgment again, or cluu'ge the defendant's person in execution. So lure, if 
 the detVndant has neglected to avail himself of the advantage of tlie security, it iit 
 his own fault, and he must take the consequences. 
 
 Judgment for the plaintlff.(A) 
 
 Percevall Hutchinson v, William Sturgefi, T. T. li (J^ \5 Geo. II. A. O. 
 1741. C. l\]Vitlcs 261. 
 
 [H. U Geo. II. Rol. 444] 
 
 A DEBT on a bond for 8/. given by the defendant to tlie plalntiffonc of the bcr> rors 
 of the virges of tlie King's household and an officer and minister of the Ki og'a 
 Court of his palace at Westminster ,- dated the 25th of July, 1740. 
 
 The defendant pleaded that the plaintifi" was indebted to the defendant inj 10/. 
 for work and labour, &c. in 10/. for goods sold and delivered, 8«.c. and in 5/. for 
 money had and received, &c. amounting in the whole to the sum of 25/. wliic h ex- 
 ceeds the debt of the plaintitl', and wiiich the defendant oH'ered to set-oJli &,c. ac cord- 
 ing to the statutes, &.c. 
 
 The plaintilf prayed that the condition of the bond might be enrolled, ar d then 
 demvuTed to the defendant's plea. The condition of the bond was for the : .ppear- 
 ance of 5. Daniel before the judges of tiie King's Court of his palace at West.n-.imter 
 at the next Court of the King of his palace to he holden at Soiuhiuark in tiie county 
 of Surry on Friday the 25tli of July to answer T. Squier in a plea of trespas j on tlic 
 case, to his damage of 99*. 
 
 This case was argued on the 7th of Februaiy, 1740. by Bootle Serj. for t' ic plain- 
 tiflT, and Agar Serj. for the defendant ; and now the opinion of tlie court v r.is given 
 as follows, by 
 
 Willes, Lord Chief Justice. " The question is whether these debts ftliich the 
 defendant sets forth in hi,s ))lea can be set-oft' against tlie pl-.iintift 's dema' nl There 
 are two statutes(c) in relation to this matter ; and it will be jiroper to c jr.sider un- 
 der which statute this falls, and how the determinations have already been in tJie 
 construction of tiicm. 
 
 The words of the first statute, which is the 2 Geo. 2. c. 22. a. 11. : ire " where 
 there are mutual debts between tlie j)laintifl and the defeiuhmt.or if i ilher jiarty 
 sue or be sued as executor or administrator where tiiere :u-e mutual u elits between 
 the testator or intestate and eitiier party, one dt bt may be set against die othei , and 
 such matter may be given in evidi nee on the general issue or ph-adt d in bar as llie 
 nature of the case shall require; .and if intendeil to be given in e\ idencc, notice 
 shall be given, &c. Upon the oi stniction of this statute several questions ajx)si' 
 before the making of the slat. 8 Geo. 2. c. 24. 
 
 1st. Whether debts on simpk- ronli'act could be sct-olT in comn icn cases nguinsL 
 a debt on sjuciality ? 
 
 2'lly. If in common cases, wlicther they could whore an cxtcu tr,r or administra- 
 tor is |)laintiP .' 
 
 And 3dly. Wliether in the case of a bond the penalty was 1 o be considered an 
 debt ? &c. 
 
 In Kemvs v. J3ftson,{d) Tr. f) Geo. 2 in B. C. it was lioldon i'4 the rase of un ex. 
 eculortliat simple coulia' t debts ci.nnot be .set-off against «icl ts on specialties; for 
 that tiicilebt'* must be cf an 'qual nrtturc ; <itlier\vise such a c mstruction might oc- 
 casion adcv.'tst'ivit. I should have been of the same opinicii I efurc the ntat. K6>o i. 
 but n )t for tlie same rca.son. For if u blalc orders it to be bo, it will justify llie 
 
 {a) A Burr. 2442. (Ij) Birch v. ^harlaml, pn.^t. 715. (c) S' u 2'Dnrr. 824 ; 1024, 5; 
 1230 i and 4 Burr 2221. {J) 8 V<n. Abr. 561././. 30. 1
 
 40 APPENDIX. 
 
 executor, and it will be no devastavit in him ; and of this opiniou wa^ Lord Hahu- 
 TviCKE in the case of Brown v. Holyoak, which 1 shall mention by and by. The 
 true rear>on is that this was only substituted in the room of an action, to prevent 
 circuity or a bill in equity. It was therefore held that you cannot set-off a debt 
 barred by the statute of limitations, because you cannot recover it by action. This 
 judg'menl was never reversed. And in tiie case of ^oy v. Roberts in the Exchequer 
 ,"./. 6 Geo. ;'. tiicre was tlie same resolution. But in the case of Stevens v. Lofton(a) 
 M. 6 Geo. 2. this court carried it further, and held in the case of an action upon a 
 bond between common persons a debt upon simple contract which was pleaded 
 Tould not be set-off, ffoing- upon this reason that tliere oug-Jitto be the same construc- 
 tion on every part of the act; but in this I think they were mistaken; for where 
 the cases are diflerent the construction ought to be diifercnt too. And of this opi- 
 nion were the Court of King-'s Bench, vvlien it came before them on a writ of error, (6) 
 and would have reversed the judgment but for another objection, the debt pleaded 
 being less than the penalty though more than the mon»y due i)y the condition ; and 
 tills being a case before the stat- 8 Geo. 2. they held, and I tlilnk very rightly, that 
 at law the penalt}^ niust be considered as the debt. And in the case of Broim v. 
 Holjoat,{c) P. 8 Geo. 2. B. Ji. on a writ of error out of this court, the coml of 
 King's Bench reversed the judgment of this coiu-t which had determined that a 
 debt on simple contract could not be set-off against a debt due for rent ; and I think 
 tliat the judgment was rightly reversed for the reasons I have already mentioned. 
 In tliat case Lord Hardwicke said it would not work a devastavit, and seemed a 
 little to doubt how it would be in the case of executors. But his doubt was removed 
 by the statute 8 Geo. 2. c. 24. passing-just at that time. By that statute it is enacted 
 that mutual debts may be set against each other either by being pleaded or given is 
 evidence on the general issue, though such debts are deemed in law to be of a diffe- 
 rent nature, unless in cases where either of the said delfts shall accrue by reason of 
 a penalty in the bond, &c. in which case the debt intended to be set-oft' shall be 
 pleaded in bar, in which plea it shall be shown how much(t/) is truly and justly due 
 on either side ; and in case the plaintiff" recovers, judg-ment shall be entered for no 
 more tiian is truly and justly due to the plaintift' after one debt is so set-off against 
 the other. This statute has solved all the difficulties before mentioned. 
 
 Butas this is not a bond vf\\.\\ the condition for the payment of money, we are all of 
 opinion that the case Is not v/ithin this statute, but must stand on the stat. 2 Geo. 2. 
 For we are of opinion that the debts pleaded cannot be set-off in the present case, 
 tliis being a bail-bond, and the plaintift'not suing in his own right but in the natui'c 
 of a trustee for Sr/uier. If this were otherwise, all bail-bonds might be defeated. 
 But it might be as well said that when a man sues as executor the defendant may 
 set-off a debt due from the plaintiff to the defendant in his own right,(e) as that 
 the defendrvnt can set-off in the present case ; and yet that is contrary not only to 
 common sense but also to the plain words of the statute. If Indeed this had been a 
 bond to the sberiffassignedover to the party according- to the statute„we should have 
 thought otherwise, and that the penalty must be considered as the debt, this not be- 
 ing a case within the statute 8 Geo. 2. But the bond here being sued by the officer 
 himself, we a.'e all of opinion that the debt due from the officer cannot be set-off, 
 and tliat judgiaent must be for the plaintiff. 
 
 (a) 8 Fin. Al>,\ 562. pi. 31. (b) Vid. Sir JF. Kel. 139 : 2 Barnard, 338 ; and 8 Vht. 
 
 AW. 562, pL 33. (c) Barnes 290 ; 8 Vin. Abr. 562.pl. 32, and 35 ; and Bull. N. P. 179. 
 
 {d) The defendant in pleading a set-off, to debt on bond, must setoutthe sum justly 
 
 due on the bond ; md that averment is traversalile. Syvimons v. Knox, 3 DurnJ. & E. 
 
 65. even though laid under a videlicet, Grhnv:ood\. Barrit, 6 D & E. 460. 
 
 (f ) Nor, when an executor sues for a cause of action arising after the testator's 
 death, can the defendant set-off a debt due to him from the testator. Shipman v, 
 "Thampson, T. 11 Sc 12 Geo. 2. C B.sup. 103 ; and Tegetnieyer and another, executors, 
 V. Lumley, T. 25 Geo. 3. B. R. The latter was an action of covenant for rent, part 
 of which became due in the testator's lifetime, and part since his death. Tlie de- 
 fendant at the trial, b.'^fore Lord Mansfield at the sittings after Easter term 25 Geo. 
 3.*set-off a debt due from the testator to him, and the plaintiffs were nonsuited. 
 Erakine xaQ\f:<X for a n.;w trial, on the groandtliat this cotddnotbe set-off; and cited
 
 APPENDIX. 4J. 
 
 M.vans V. Prosser, E. T. 29 Geo. III. J. D. 1789. 3 T. R. 1S6. 
 
 'T'HIS was an action »ipon the case for work and labour, cai-e and diligence, as an 
 ■*■ aiiorncv, witli h. ' (»mnion money counts, and tlie declaration was entitled of 
 Hilar^ \.Qvm,2J Geo. o. Pleas, lirst, twn assumpsit; 2(ily, 4th;it ti\e pliiintiii^t/^y/c 
 an I at the tirm of the plea pleaded was and still is indehled to tlie defendant in a 
 larger sum tlian is due and owing from him to the plaintiH", sc. in 251. 9s. on a 
 promissory n,)te of the plaintifi cU.ted 50th July, 1787, made payable to P. H Ce^il, 
 and by him on the same day and year indorsed to the defendant, &.c. and m otlicr 
 sums, &c. Replication (protesting that the plalntitl' exhibited his bill against the 
 defendant on Tuesday next id"ter the morrciw oi All SoiiU in Michaelmas term, iii 
 the 2oth year, kc. protestingalso that the indorsement was made to the defendant, 
 a=id that the several sums by the plea supposed to be due to the defendant accrued 
 and became due to him after exhibiting the plaintiff's bill.) That, notwitl)stanJing 
 tlie defendant's plea, to wit, on Tuesday next afior eight days ul'St. Martin in Mi- 
 chaehnas 2S Geo. 3. the defendant brought an action in tliis court a.:^:iiiist the plain- 
 tiff upon tiie Same note, in which action, and after tlie defendant's pleading in the 
 present aclion, to wit, on WeJiiesday next afttr ffteen days of St. Martin, in MicLiei- 
 niis, 2^ Geo. 3. the plaintiti'paid the amount of the note intocourt, under a rule of 
 court : with an averment that the plaintiff was not, at the time of the pleading in 
 this action, mdebtcd to the defendant upon the several causes or considerations in 
 liis plea mentioned in any sum xceeding 25/. 13*. so by him piiid iut6 couit, SiC. 
 in that action. 
 
 To this replication there was a gcncr.al demurrer, and joinder. 
 
 Morgan, who was called upon to suppoit the replication, contended that the de- 
 fendant could not bring an action on the note, and ])lc.ad tiie same note by wav of 
 set-off: and that, bv the plaintiff's paying tiie amount of it into court in that .action, 
 lie had done away the defendant's set-off. But the defendant's plea is also bad, 
 and may be taken advantage of on the demurrer to the replication. For it is not 
 stated that the debt on the note which is the subject of l!ie set-off, was due and ow- 
 ing from the plaintiff to tlie defendant at tJi^ time of exhibiting the plaintijfs hill. 
 Its being a debt at the time of the plea pleaded is no answer to the plaintill's de- 
 mand. If such a plea could be supported, the plaintiif woidd be deprived cf those 
 <-osts to which he was entitled when he brought this action ; and perhaps tiie note 
 may iiave been indorsed to the defendant after the action was brought for the very 
 purpose of defeating it. 
 
 Lane, contra, cited. Brov.m\. B.iskeri:ille,{a) to shew that the defendi.nt might 
 bring his action on the note, notwithstanding his plea of set-off. And in support 
 of the plea, lie relie<l on the authorities of Sullivan v. Montagii,(_lj) and Reynoldt 
 
 Rvdout Ass\i:jiee \. Bro!igh,Coivp. 133.Shipman v. Thompson (1) Bull. N. P.IHO, and 
 Kilvington executor v. Sterenson, which he read from a note of Mr. Justice Yates. 
 • Assumpsit as executor for goods of his testator. There were two ple.is ; 1st. Kon- 
 assumpsit ; 2dlv. A set-off for a debt due from the testator to tlic defend:.nt. To 
 this the plaintiff demuiTed. And Wallace, in supjiort of the demurrer, insisted tiiat 
 the plea was bad, and that the defendant could not set-olfadrbl owing to him by 
 thetestatorinsatisfartionofthe present demand, as that would be aUiringtIic course 
 of distribution, and hemiglit by that mean be paid bi.fore creditors of a superior na- 
 ture. Mr. Solicitor-Genernl, who was to have argued on the other side.mcntion'.d the 
 Stat. 2 Geo. 2. c. 22. s. 13. Per Curiam. The plea is clearly bad. This is not nn action 
 for g lids that were in his iiand-i at tlie testator's death, in which case he might set - 
 off; but for goods he has taken possessionof since hi* lUatli, in which ens.- to allow 
 the set-off wjuld be altering the course of dintribution. Judgment for Ihc i)l:inili(l." 
 tVv-v/itT showed cause against the rule; here th«- executors unitobt)llilhc-ir<leni:uu..H: 
 and this case differs from those cited. The balanr,- only ought to be paid. And a.s 
 to the inconvenience of altering the course of administration, iJie executors ha\o 
 put thems<lves in this situation. 
 
 Erihinc, wlu) was going to argue In support of llu- rule, was stopped liy 
 
 Lord Mdnfivld, Ch. J. who s.aid he wan satihlied on the i)oinl, on the authority 
 
 of the cascof A'/'/v/wirtort V. S'rfvcHJow. 
 
 Rule absolute. 
 
 (1) .?«/). 103. S. C. 
 
 («) 2 Burr. YU'i. (b) D'.ui'l. lOb.
 
 42 APPENDIX. 
 
 V. Beerlin^ ■,{a) in whicli it was expresslj' decided \\\-Ai actio non goes, in every case, 
 to the time of pica pleaded, not to tlie commencement of the action And he ob- 
 served in answer to the argument, that the note miijlit have been indorsed to tl^e 
 defendant after the action broug-ht ; that it apjjcared on tlie recoiiltluit the note was 
 r;iven in Jidv, ITS", and on the same day and year indorsee to the defendant ; 
 wliereas this action was not broug-httill Hil. 29 Geo.o. so that in this case the set- 
 off' was of a debt due at the time oi' bringing the action. 
 
 The curt were clearly of opinion tiiatthe replication was ill, on the autliority of 
 Brown and Basiervitk ; adding that, if tlie set-off were proved to the jury, and the 
 defendant also succeeded in his action on the note, the ] laintiffin this action might 
 bring an audita querela, or have some other remedy. But they wished to lock into 
 the cases cited in support of the pie.". 
 
 On the next day Bii.lek, J. said he had locked into the esse of j?ceji.?;6W« v. 
 Beerlisig, and foimd tliat it could not be supported. One question, which arose 
 there, was w^hcther a judgment could be pleaded by way of set-ofr'pending a writ of 
 error ; wliich tlie com't were of ('jrinion might be done : and so far the juclgmci)t was 
 right. On the other point there ruled, namely, that a judgment recovered after the 
 action was brouglit, and before plea pleaded, miglit be pleaded by way of set-oft'; 
 perhaps the court did not consider the strict law, so much as the justice, of the 
 case. But this point cannot be supported On wliich 
 
 Judgment was given for the plaintiff'. 
 
 Baskervillew Brown ; et e contra. T. T. 1 Geo. III. 2 Burr. 1229. 
 
 BROWN brought an action against Baskcrville upon two promissory notes 
 amounting (both together) to the sum of 30/. The cause was entered and 
 tried before Lord Mamjidd at the sittings • and the plaintiff took a verdict for the 
 vhole of his demand. 
 
 BaskervHle had also brouglit an action against BroTon, for 11/. 18j. for taylor's 
 work done bv him for Broi-cn ; and this cause was likewise entered ;.nd tried at tlie 
 very same sittings ; but it liappened that the former cause (wherein Broivn was 
 plaintiff",) was first entered and first tried. 
 
 In the latter cause (wherein Baskerville was plaintiff",) the therein defendant 
 (^Browii) had given notice of a set-off oi' so muck of the before -mentioned two pro- 
 missory notes, as would suffice to answer BoskerviUe''s demand against h.im ; and he 
 was ready, at the trial, to have done so, notwithstanding his having taken a verdict 
 for the whole 30/. in the cause wlierein he was plaintiff' : but Baskerville^s counsel 
 opnosedthis ; and insisted that Broz-m had c'6'ic//i/)C(/ himself from making this set- 
 oT, by having taken a verdict for the wAo/e of his demand ; whereas he ought (as 
 t ;ey insisted",) to have left out so much, in taking his verdict, as was equal to Bask- 
 erville's demand u])on him. 
 
 I.o.-d Mansfield, at the trial, inclined ag-alnst allowing the set-off"; but he 
 thought it a matter tliat deserved consideration. 
 
 It was accordingly brouglit before the court, for their consideration, in the form 
 
 (a) Reynolds t. Beerling. M. 25. G.3. B. i?. 
 
 Assumpsit. Plea, set-off" on promises, and also on a judgment recovered by defend- 
 ant agauist the pi nintiff" after the action brought and before plea pleaded. Replica- 
 tion, error pending on that judgment. To this there was a general demurrer and 
 joinder. 
 
 Shfpherd, for the demurrer, insisted tliat the replication was no answer to the 
 defendant's plea ; that the circumstance of the w'rit of error bcingpcndingwas no 
 bar to the defendant's settingoll the judgment. And In support of the plea he cited 
 Su/livm v. 3Iont''gu. 
 
 Lane, contra, said that as the writ of error was a supersedeas to an execution, it 
 ought to be so to every other mode of obtaining the eff'ect of the judgment. And 
 contended tliat tlic plea itselfcould not be su],>ported, because it was rot only contra- 
 I'Vto the settled mode of pleading, but also contrary to justice, for the plaintiff* 
 might be thus deprived of the costs of the action to which he was entitled. And as 
 1 1 Sullivan v. Montagu, the principal question was, whether the judge could certify 
 af'cr tlie cause was over. But 
 
 The court said, on the authority of Sullivan v, Montagu, that the pica "V^as good j 
 and that the replication was no answer to it.
 
 APPENDIX. 43 
 
 of a motion made on the pnrt of tlie defendant, Bro'.vn, for a rule upon Bashenille, 
 fae plaintitt", to show cause why tlie verdici (which h,.d been found for BaskcrviiU) 
 should not be set aside ; and wh}' tlie defendant, Brovjii, should not have the costs 
 of a nonsuit. 
 
 Mr. .Yurfon and Mr. llifw, on behalf of the plaintiff, Baskerv'dle, now shewed 
 cause ag-ainsi this rule. And, besides urging- what they liad insisted upon at the 
 trial, they added further, That tlie statute only sa\->i '• that the defendant ma,' set- 
 " otf the debt due to him from the plaintili ;" but does not compel him to do so : 
 and here the defendant, Bro'ivn, had actually made his election '* not to Jo it," by 
 taking a verdict f )r his :i>/io/e demand in the cause wherein he was pl./uitifi. And 
 they insisted lliat the nature of the debt is changed, and the former debt txtin^\Lh- 
 eJ by the verdict ; so that it cannot be set oft^ in an action tried ijter tluit \e.ditt 
 had been given. 
 
 T) this, it was answered by Mr. Morton and Mr. Stowe (in support of the rule), 
 that the debt remains unchanged in its nature, and unextinguished, notwithstanding 
 the verdict. And it miglit liaie been still set-off, they si'.iil, in the present action. 
 Without any inco.ivenience : for i^ Brown should attempt to take out execution for 
 tlie Mihols, in the otlier action wherein he was plaintifl", after a set-off in this actii)n, 
 either the court would set the matter right, (even with costs,) or Baskcrville might 
 have redress by an audita fpurelu. But Brown was obliged, they said, to take his 
 vertllct for the w/io/s of his demand : for he could not be sure that Bnsktrvilk 
 would try his cause at all : and then Brovn would have entirely iust this sum of 
 11.'. 18j. Brown did all he could to come at a fair balance : he could do no moi-e 
 then plead it, or give notice to set it off, as it stood at the time of the ])lea ]ileaded. 
 The. fault was in Baskerville. He ought to have set ofihis demand upon Broii-n of 
 11/. 13.J. against Broivn''s demand upon him of 30/. And then com]>lcte justice had 
 been done easily and at once. He oug/it not to have brought his action against 
 Broiiin at all. Clk. advis. 
 
 Lord Mansfield now delivered the resolution of the court. 
 The meaning of the act of p:a-liament, he said, was, that in all cases of mutual 
 debts, the less sum should be deducted out of the greater, if the defndant desires it. 
 But Brown could not compel Baskervi'le to set-oil liis less demand upon Brown, 
 ag.xinst Browds greater demand upon him : nor co'.iid Brown ]\:<\v s:d"ely taki-n his 
 verdict fir less tlian his whole demand. Yet Baskerville himself might have done 
 this without prejudice, and with perfect safety : and he ought to have done it. — 
 But he declined doing it ; and at the same time brings his action against Brown, for 
 what he might, without prejudice, have set o(i' against Brown^s demantl upon him. 
 Therefore it was litigious and vexatious in him not to do it, when he might safe- 
 ly and easily have done it ; but chose, instead of it, to commence an action against 
 Brown^ 
 
 B )th actions stood together for tri.d : but it happened that the cause of Brown 
 V. Baikervillc stood first. Brown took his verdict for the whole demand upon the 
 tvv) notes; there being no plea nor notice of anysetolfin tJiis cause wherein 
 Brown was plaintiff. 
 
 Then came on BasZ-erville's cause, in which he was plainlitV, and Brown the de- 
 fendant ; in which cause. Brown had given notice to set-off so much as was equal 
 to B'lskeroillc's demand upon him. Tliis he would have done : but it was opposed i 
 and the objection seemed specious. 
 
 Bat we .ai-e all clearly of ojiinion, upon full consideration, " that the debts might 
 " be setofVone again.st'the other in this latter cause, notwithstaiuling Bro^vnWv.w- 
 " ing taken a verdict in the former for his wliole demand." For if at tiie time if 
 tjie action brought, the defendant may setoff one debt .igainst the other, or phad 
 (if alarger sum be due from the plaintifl" to him, tlian from him to the plaintifl, ) 
 in bar of the plaintiff's action ; Brown had a riglit in the cause \s herein he w:.-* 
 defendant, to give this notice of a set-off, at the time when he gave it. Ami //.;*- 
 krville might, in the cause wherein h<- was defendant, iia\e set otl su'h part of the 
 brger sum ilue from him to the [(laintiff Brown, as was eriMal to the <lebl due to 
 him fnun the pliintiff, if he had tli ought proper. And lirown* notice to^.t off 
 against Basierville's dem md, told him, lh:it Brrr.vn was nah to .trite a halarer 
 between tlie mutual dcl)t3, and to he content with the difference l)ctw<-on them ; an4 
 it specilitd the natmc oi' Brown'v d\:mand upon him, as the act rcquiiCK,
 
 44: APPENDIX, 
 
 Thus it stood before the verdict : tlie debt due to Brmm was a mutual debt ; 
 and notice was g'lven of it, and upon what account it becaiue due, and that \\ was 
 intended to be insisted on. And a/io- the verdict, it still kemaiised a vuUual 
 debt, as it did before. The verdict did not annihilate or exting'uish the debt ; nor 
 change the natui-e of it, or the rule of law : it only amounted to conclusive evi- 
 dence of it. So that Brown had tlie same right to set it oh' after tlie veidict, as he 
 had before the verdict. 
 
 Wc are of opinion, this right to make the set-olF still remained in Brown, both 
 within the words, and reason, and i?2tent of the act of parliament : and that the debt 
 was neither extinguished, nor its nattire changed. 
 
 Baskcrville was tlie only person in fault : and he ought not to ha^e brought his 
 action. 
 
 Brown was right all along : he could not have taken his verdict for less than he 
 did, with safety. He may now remit so much of the sum he has recovered, as will 
 bring the mutual debts to a just balance : and this he ortght to do. 
 
 But it would be strange, if the mei'e accident of the piiorlty of tial should, by 
 his cause happening to stand first in the paper, preclude him from taking the 
 bcneht of the act, according to his notice rightly and truly given at the time when 
 it was given. 
 
 Per Cur. unanimously. Verdict set aside ; and the defendant to have costs of 
 nonsuit : and Brown to remit so much of his damages recovered in the other action,, 
 as exceed the balance of the mutual debts. 
 
 Symmons v. Knox^ II. T. 29 Geo. III. 3 T. R. 65. J. D. 1789. 
 
 TXEBT on bond in 11619/. 13.?. U. dated the 14th July, 1784. The defendant 
 ■^^^ (after praying oj.er of the bond and of the condition, which was that the bond 
 should be voicl on i-iyment of 5089/. lis. 8d. with lawful interest, on the 25tli of 
 March then next) pleaded aa follows : that at the time of exhibiting the bill of the 
 ^aid John there was jtistlti and 'truly due and owing to the said John, on the condition 
 of the said writing obligatory, 'pjr principal- and interest, the sum of 5809/. 11*. 8d. 
 and na more, to wit, at V/estminstcr vSorcssaA in the county aforesaid ; and that the 
 said John now is, and on the day of exhibiting the bill of the said yohn was in- 
 debted to the said IVilliam in more money than is remaining due to the said John 
 by virtue of the said writing obligatory ; and concluded with a set-ofi' in the com- 
 mon form. The plaintift'replied, that at the time of exhibiting the bill of the said 
 John there was andjei is juslty and truly due and owi?ig to the said John froin the 
 laid William, upon av.d by virtue of the said writing obligatory anfi the condition 
 thereof, for principal and interest, a larger sum of ononey than the said sum of 
 5809/. lis. 8i. in the said plea mentioned, to wit, the sum of 6930/. 3s. 9d. ; con- 
 cluding to the country. 
 
 To this replication the defendant demurred : and showed for cause that the plain- 
 tiff" in and by his rejjlication attempted to put in issue a matter wiiolly Immaterial, 
 and therein traversed a fact, whereon no certain or m.aterlal issue could be taken ; 
 und hatli not in and by his replication traversed, or denied, or confessed, the only 
 fact in the plea whereon a certain or proper issue could be taken ; and because the 
 replication was in various other respects defective, informal, &.c. 
 
 Baldwin, \n support of the demurrer. This question arises on the 8 Geo. 3. 
 c. 24. s. 5. which gives the pleaof set-oft' where tlie demand on either side accrues 
 by bond ; and which directs that judgment shall be entered for no more than shall 
 appear to be due to the plaintiff after one debt is set against the other The ma- 
 terial issue, therefore, to be tried is, wliether the plaintifl 's demand on tlie defend- 
 ant exceeds that which the defendant has on him : and it is immaterial to take issue 
 on the exact sum due from the defendant to the plaintiff. For if the parties were to 
 g-o to trial on such an issue, and the plaintiff proved that onh' one shilling more was 
 due to him, the defendant would be deprived of the benefit of the statute, even 
 though his demand exceeded that of the plaintiff. And no inconvenience can arise 
 from" this practice, because the act directs that judgment shall only be entered 
 up for so much as is really and justly due. 
 
 Dampier cojitra. The statute expressly requires that the sum which is justly 
 and truly due shall be pleaded in bar, in which plea shall be shown how much is
 
 APPENDIX. 45 
 
 truly and justly due on either side. If tJien it be necessai'v to &ver that something' ig 
 due on lae bo.ul, the particiJars of tluit averment are nccessai-y. And tlic meanint- 
 of the statute is that, in case Ih.e defendant sets oHa bond debt, the phiinlitl rr.aV 
 knjw tne amount of the defendant's claim ; or that, in case tlie defendant sits off 
 to a debt due to the nlaintiif arising- on a bond, lie may know how much tie de- 
 fendant admits. If tlie defendant were not to set foith the true sum, the plaintiff 
 would go to trial ig^norant of what was to be proved by the defendant, which was 
 the very tiling against which the statute meant to provide. Then if this be a 
 matei'iai averment, it is traversable ; for if the plaintiif were not to traverse it in 
 his replication, he would be taken to have admitted it. And it is so matciial, that, 
 unless the defendant avers wliat is truly and justly due, he is not entitled under tlie 
 statute 10 set o.f at all. But whatever may be the gener.al construction of tiiis sta- 
 tute, the particidar manner of pleading this pica has made the aveinu-nt materi;;], 
 and consequently traversable. Th(» plea states that the defendant was indebted to 
 the plainiirl, on the bond, in 5S091. lis. 8J. and no more, without laying- it under 
 a viJdicet ; in consecjuencc of which it became necessary to deny it in the replica- 
 tion, otherwise the plaintin' would have been bound by tliat precise sum. In 
 Diirston \. Tut'ian{a), where the declaration stated tliat, in consideration that the 
 plaintUf would buy of the defendant 45 sheep for 54/. 1L\ 6(/. the defendant un- 
 dertook and promised that they were s'Aind, the plaintiii proved the (dice to be 
 54/. 12i, 6./. Buller, J. held the variance to be fatal, because the sum was not laid 
 under a vi.lt/icet ,■ and non-suited the plaintiii'. The defendant in this case lias :ilso 
 added the words " and no more," which the statute does not requiia , but which 
 make the traverse the more necessary. 
 
 Lord K.EN- YON, Ch. J.— 1 own I form an opinion on this subject with great 
 diffidence. This is an action brought on a bond, in which case the siatiite says 
 that, if the defendant wishes to set-offa cross demand agninst the plaintiii, he must 
 first state in his plea what is really due on the bond ; the defendant then ir. his 
 case, being furnished with the meaiis of ascertalng the extent of the demand upon 
 the bond, states that such a sum only is due ; and having thus complied with the 
 requisition of the statute, sets off" a cross demand. And the cpiestion is, whether 
 the plaintiff is bound to admit that that is the extent of his demand. Now if he 
 does not deny it in his rephcation, he admits it : it therefore became necessary for 
 the plaintiff to traverse it ; for, if the pla;ntifl' were to go to trial only on the issue, 
 whether his dem.-nd did or did not exceed the defendant's great injustice might be 
 done. And it seems to me that there is reason in requiring that the exact sum 
 should be pleaded, because the pvu-posc of i)leading is to reduce the matter to a 
 point. Here, too, the sum is not pleaded under a ?v /e//ce< .- and it hrs been leng 
 settledthat where any thing is hiid under a -vi leliat, the party is not cmuludc<l hy 
 it ; but he is, where there is no vicklicet. It would therefore be very luird on this 
 plaintiff if he were bound by the sum, which the defendant has stated not under a 
 iv\/cV/cf?, without having an ojjportunity of traversing it. , . . 
 
 AsiiHURST.J.— The're is a manifest distinction between this sti.tute and ihat of 
 tlie2Geo 2 c 22. For this act expressK rerfiircs that the defendant shall «< t 
 forth the precise sum which is due on the b:)-i<l, before he can he peiniitti d to set 
 off- his demand. And theref.n-e we are prcchuh-.l by the statute from consulenng 
 this on the same footing with simple contract (hbt.s. The form of pleading un.lcr 
 a videlicet, where the partv d<.es not mean to be concluded by the sun. state<l. sl.owi 
 that, where it is not so pleaded, he is bounri by the precise sum phr.dcd. Now here 
 the defendant plead.-d that aceitain sum was due to the phontdl on the bond n,,<f 
 ;,, more, which would have concluded the plaintiH, iJ he hud not traxcrsed itm 
 
 •"^Sri^(.). If the two statutes ^ .Geo. ..j,^.^^^^C>....c.^A^ 
 
 (a) Taunton Sfi. Au. 17H8. cor. Bnllrr. J. 
 
 \l,) Mr. Justice Butler was Billim; toiUic Lord Chancellor.
 
 -6 ' APfENDlX, 
 
 eltlier the plainfiflT's or the defendant's demand accrues by reason of any pcnaltv-, 
 the debt intended to be set-off shall be pleaded in bar, in which plcashall be sliow'u 
 how mucii is justly and truly due on either side. So that under this act the de- 
 fendant cannot g'ive a notice of set-off with the g-encral issue : but he is required to 
 plead it in bai", in which plea he must state what is really due on the bor.d. And 
 as far as my experience goes, the plea in this case is warranted by the usual form 
 of plcadiuj^ : it has not been usual to jilead that a large sum of money, to ii-it, so 
 much is due, but that a specific mm is due and no more. And this mode is certainly 
 consonant to the 8 Geo. 2. c. 24. 'i'hen.asthe defendant set fortli what was really 
 due without a vidclictt, the plaintlfi would be taken to have admitted it, ii he had 
 not traversed it in his replication. 
 
 Demurrer overrided. 
 But as Bald'xin suggested tliat it had not been the practice to traverse this aver- 
 ment in the replication, tlie court gave the defendant leave to amend on paying 
 the costs. 
 
 liankeij and others^ jissi,^necs of Jofni Ls* Benjamin Vaughan^ v. Smith and 
 ot.hers, E. 29 Geo. III. A. D. 1789. B. R. in A'otefi 3 T. R. 507. 
 
 1"^ O this action upon the case for goods sold and delivered by the bankrupts the de- 
 ilndants pleaded the general issue, and gave notice of set-ofi"applic;.ble to the 
 bill of exchange iiereafler mentioned. At the trial at the sittings aht:r Jlic/iachnas 
 term 1788, at Guildhall before Lord Kenyan, the jury gave a verdict for the plaintihs, 
 da n ages o20^. 16*. subject to t!ie oj)ini(m of this court on the following case : — 
 On tiie 26tli o? yuly last a commission of bankrupt issued against tlie Vaughans, who 
 on ihe 29th of the same month were declared bankrupts, yolui Faiighan committed 
 an .act of bankruptcy on tlie 22d, and Benjamin Vaitghan on the 23d af ^/ulv. 1 he 
 plaiiitiiTs 01! the 5th ui' August were duly chosen assignees, &c. On the 3d oi'yjilj the 
 Lankjrupts, w!io were sugar-refiners, sold the defendants sugar and molasses to the 
 amount of 452/. 2*. 8i. and on the 21st of the same month sold other sugars to them 
 to the amount of 68/. 135.4:/. making- together 520/. 16j. for which this action was 
 brought. O.ie William Broadhurst, on the 6th cS yune, 1788, drew a bill of exchange 
 on the bankrupts for 600/. payable to his order two months after date for value deli- 
 veredto him in raw" sugar ; whicli bill was duly accepted by the bankrupts, arid in- 
 d >rsed by Broadhurst, and delivered by him to Towgood & Co. who on the 2d of 
 ^ul]' la.st, and after the bill was accepted and indorsed, discounted it wiih tl)e de- 
 fendants, and delivered tlie same to them. 'Ihe defendants on the 5lh oi' August last 
 proved imder Vauglians commission, 791. 4*. as the balance due to them on tiie bill 
 of exchange, after deducting 520/. 16.?. On the 10th oi September, 1788, one of the de- 
 fendants, Francis Ke')nble, was examined licfore the commissioners named in tliecom- 
 inissicm against the ban!cruj)ts,wheu he deposed,That he, together witii yos-Kemble, 
 Smith, and Travers,\\\e other defendants, carried on the trade and business of gro- 
 cers ; that on the 2d oi yuly last, W. Toivgood a])plied to liim to discount the bill in 
 question ; that he 1 1 ad before that time heard that Vaughans'' iiouse was in difficul- 
 ties, but he knew that B. Vaughan was a partner with y. Vaughan, and he thought 
 him a good man ; that W. Towgood said there had been rumours of Vanghans^ sto])- 
 ping, and that as tJie house of him ("this examinantj vias engaged in the sugar trade 
 they could buy goo Is to cover the bill ; that he said he did not care what rumours tliere 
 were, as, he believed the house of y. Vaughan & Co. to be perfectly safe, and that 
 they only wanted time ; that at the time he toot the bill he vieatit to buy sugars to cover 
 the bill ; that accordingly' some sugars and molasses were bought on the next day ; and 
 that betv.'cen that time and the 22d Oi yuly, sugars and molasses to the amount of 
 520/. 16j. \vere bought by tiieir (this examinant's) house of the bankrupts ; that he 
 had never discounted a bill for TV. Toivgood before, and that he knew that Toivgood''s 
 father Avas a banker. The defendant, yostph Kemble, was also examined befoix' the 
 commissioners, who deposed that he was the person who bought the abovcmen- 
 tioned sugars of the banla-upts, and that at the time he boug'ht the same he did 
 not inform tliem of their house being in possession of tlie bill ; that onereason cfhis 
 going to the house o/V'aughan &• Co. to purchase the sugars and molasses loas their bc- 
 ins; in possession of the bill ; and that aL the time when the bill was discounted for 
 Tuivgood he did not indorse the same, but by a memorandum in writing agreed to 
 indorse it when he should be thereunto required ; tl^.at he accordingly indorsed 
 ita few d^ys afterwards and after he had heard that Vaughaii's house had stoj)pe<l 
 payment ; that the reason why the bill was not indorsed was that if Vaughan & Co. 
 had stood tlieii* groiuid it might be presented for pa^-ment without the indorse-
 
 APPENDIX. 47 
 
 ment of To^^good, Danvers, and Co. (the house in wliich TVI/ilam TmvgooJ is a part- 
 ner,) iis JV 'i'oi:gooU tlni no', chuosc th:it tlicir iii.inc.s slioulti appear. 
 
 /iunstl, t'ji-tljc plain ills, contended tliat, abstrucudh from every circumstance <'.f 
 fraud, ilie set-o,' could not be maintained, because tliei'e were neiilier nuilu:Ll debts 
 or mutual credits between the p;a-ties wiiliin the 5 Cat. 2. c oO.(rt) i'rtsc^t^s case shows 
 th:it tiiere was no mutuaLiebt, because the bill was not due till utter tJie bankr\i|)tc\ . 
 Neiilier was liiere any vitttiiai creUit ; for at the time of selliu}^- the goods the bank- 
 rupts did iiot know that tliis bill was in the hands of the detenUar.ts. They, in 
 taking: tlie bill, g-ave no credit to the bankrupts ; tJiey took it nie.cly to acconinio- 
 date Toixsgooj, and Co. But 
 
 The c lurt were clearly of opinion that tlicre was mutual credit 
 
 Lord Ke.vvox, Cii. J. said — The mutual credit, was constituted by taking- the bill 
 on the one hand, and :,ell<ng'the sui^ars on the otiier. Though if tlie bill bud conic 
 into the defendants' hands ex post facto, as after the action(^>) was brought, it would 
 have been otherwise. 
 
 Bllleh, J. — In order to constitute mutual ci-edit, it is not ncccs.san- that the 
 parties mean particularly to trust each other in tliat transaction. For if a "bill ofj cx- 
 chant^e, which is acceiited, be sent out into the world, credit is given to the ac- 
 ceptor by every person who t;ikes the bill : now that constituted liic iredit on one 
 side in tliis case ; then, on the other, credit was given to the defendants Ly ths 
 bfxuiiaapis for tlie goods. 
 
 Tlie case was also argued on the ground nf fraud : but the court, not considering' 
 the transaction to be fraudulent, gave judgment for the dcieiuiants. But on a sub- 
 sequent day in Easter term they observed that there were circumstances to be left 
 to the jury, on which they ought to exerci.se their judgment, whether or not iKiud 
 to the defendants could be imputed ; and lor that rca.sonthey ordered it to be sent 
 down to anotl'.e;- tr a!. 
 
 Holrojd, for tfic defendants. 
 
 Hancock and others, Asdgnecs of Edcnsor, a Eunkru/it^ v. Kutvjislc and 
 others, M. T. 30 Geo. III. A. D. 1789. 3 T. R. 435. 
 
 THIS was an action on a bill of exchange; and, the plaintifTs having proved 
 ilieir case, the only cjuestion was whether the delendants were eniiikd to » 
 set-oti aiising iiom an agTcenient, made in March, irtib, between the defend:. nts 
 of the one pai*t, and t!ie bankiupt of the otlier, by which, (after reciting that ii loi;a 
 had been sustained by the defendants in consequence of the ]hu chase of sonii cot- 
 Ion by the bankrupt as their broker, for rcinibuisiiig which they made a claim cu 
 him,) in order to put an end to all controvcisy concerning U, it was agn-etl titut the 
 loss, though exceeding 1900/. should be fixed at that sum, ar.d no iiun ,• and that in 
 payment or sati.sfHction of that sum the bai»kru|)t .•-.lioiild, from time to time, within 
 the s|)ace of four years rccomniend parcels <>f cotton, not e.xreeding l.JO b. j,s at. 
 one time, to the defendants for their purchase, and that liie deleiulanis bhoulil pur- 
 cliase them, paying for them in notes at three month's date. j{i:d the laiJrupi un- 
 dertook that the clear profits on such sales should in the count tffi,ur years be sujjicieat 
 to discharge the IdOOl. but if the same should not be paid la'thiii that lime, then tie 
 bankrupt agree I intniecliiUely rfer the expiration (f the fair years, in Case he should be 
 then living, to pa. them tut dij/ercnce. And if tlic purchases should occasion .. K .-ii* 
 to the defendants, the bi.nkruiit undertook to make gixid biich loss. Lord A'en.on, 
 before whom the cause was tried, being of opinion that the dcli.ndai.ls were not 
 entitled to set-off', the plainlilfs obtaineil a verdict. 
 
 On a firmer day a rule was obtained to .sliow cause wliv n new tri:l should not 
 be granted ; against which 
 
 Erskine and Marryat were now to liave sliewn cau.^-e : Ihit 
 
 Law .ind S. Ilu^wond, in «unp«irt of the rule were <ieslr«d to In'Kin. The .nct-oM 
 
 may be allowed, bccau-se these were iicpiidated damages, by the j.givemeni i ;.i.d 
 theVefire this is not like the rase of lhv:Ut v ' ' " ) \\ lu-n the pajtv he- 
 
 came a bankrupt, lie was incapable of pcrfon; : :-:iit ; and then h iij,lit 
 
 of action to the amount of 1900/. attached, 'i ■ aiiie a debt which ll,« 
 
 defendants miglit have proved under the comniishion, llic parties Laving pixvioiuly 
 
 (a) Atk. ::30. (A) Vid. Evanf v. Prgjser, ante m. (c) CoM'fi. 36.
 
 48 APPENDIX. 
 
 agreed as to inc iji.artnia of s:<.tisfac1 ion to be paid by tbe bankrupt to the defen- 
 iLiiits ; and if tbcy mig-ht liave proved the d(.bt under the commiasion, they may 
 also set it olf in this action brougiit by the assignees. 
 
 Lord Kenyon, Cii. J. — If this deed had never been entered into, the claim 
 whicli the defendants had on the bankrupt could not have been set-oh in this ac- 
 tion, because it rested merely in damag'es ; it arose from tlie misconduct of the 
 bankrupt, and mig-ht have bcecn settled in an action. But by this deed the dama- 
 ges are liquidated, and the parties ag-reed on certain things to be done in the course 
 of foiu- years, as the means of making a recompense to the defendants to the amount 
 of tliat sum. If a certain sum uf money had been payable at :dl events, by instal- 
 ments, and one oi"the payments had beeome due before the bankruptcj', ihe wlu>la 
 mig'ht !iave been proved under the commission. But it is clear th-.t the bani<rupt 
 was not discharg'od by his banlu'uptcy f"ora the operation of tliis deed ; for when 
 lie obtains his certificate, he may be enabled to perform the stipulations contained 
 in it. Then if lie were not discharged from his covenants by his certihcate, this 
 debt could not be proved under the commission, nor can it be set-ofi ; for it had 
 no existence as a debt at the time of the bankruptcy. The distinction has been 
 well settled in a variety of cases, as in those of Ex parte Groine(a) and Ex parte 
 Winckcster,{b) that if tlie demand be payable at all events, though at a future da)-, 
 it may be proved under the commission : but wiiere it depends on a contingency, 
 whctlier it will be paid or not, it cannot be proved, unless it be secin-ed by a pe- 
 nalty which \s forfeited at lavs : in which case the court will take hold of the legal 
 rig'ht to give the party a remedy under the commission. But in this case there 
 was no legal demand at the time of the bankruptcy. 
 
 Rule discharged. 
 
 Eijall, Knt, and oi/irr/i, assignees of Harvest^ a banlcrujit.^ v. Larkin^ B. i?, 
 M. T. 20 Geo. I!. A. D. 1746. 1 IVils. 155. 
 
 ACTION on assumpsit, that the defendant was indebted to Willican Harvest 
 and yonathan Stevens deceased, whom the said William Harvest survived, in 
 20/. for g^ods sold and delivered by the said WilUaTn Harvest and Stevens in his life- 
 time, and before the said Willidnn Harvest became a bankrupt, to the sa.\dJFilliavi. 
 Larkin quantinn valebant for otiier gootls, and an insimul computasset with Harvest 
 and Stevens in his life-time, whereupon defendant was found in arrear 13/. 5s. 6cL 
 and being so found in arrear promised payment, and concludes that the defendant 
 hatlt not paid the said Harvest and Stevens in the life -time of the said Stevens, and 
 before the said Harvest became a bankrupt, or to the said Stevens in his life -time 
 since the said Harvest became a bankrupt, or to the said plaintifis, the assignees, 
 .since the death of the said Stevens, to the damage of the said assignees of 20/. 
 
 Defendant pleads non assumpsit, and thereupon issue is joined ; and further the 
 defendant by leave of the court says, that the said assignees ought not to have or 
 maintain their said action against him the said defendant, because he the said defen- 
 dant says that the said William- Harvest before be became a bankrupt, that is to 
 say, on the 21st day o^ April, 1740, at Westminster, in the county aforesaid, b3'his cer- 
 » tain writing obligatory called a bond, sealed with the seal of the said William Har- 
 vest, and shown to the court of the said Lord the King-nowhere, the date wliereof 
 is the day ar.d year last mentioned, acknowledged himself to be held and flrmly 
 bound to the said William Larkin in 100/. of lawful money of Great Britain, to be 
 ])aid to the said William. Larkin, when he should be thereunto required ; and the 
 said William Larkin in fact saith, that there is now due and owing tohim the said 
 Williain Larkin froin the said William. Harvest, upon account of the said writing 
 obligatory, for principal and interest the sum of 64/. of lawf d money of.Great- 
 jSritain, to wit, at Westminster aforesaid in tlie county aforesaid, which said sum of 
 64/. bv the said TVillia7n Harvest owing as aforesaid, exceeds the money from the 
 said William. Larkin due to the said assignees of the said William Harvest as afore- 
 said, to wit, the sum of 13/. 5s. and 6:1. by occasion of the promises mentioned in 
 the said declaration, namely at Westminster aforesaid, and out of which said sum of 
 64/. he the said William, Larkin is willing" and offers to pay the said assignees the 
 whole of the said money due to them as assignees aforesaid, by reason of the pre- 
 
 («) 1 Atk. US, (b) 1 Atk. 116.
 
 APTEXDIX. 49 
 
 mlses according to the form of the statute in such cnse made and protided ; and 
 this he is ready to verify , wiicrefore lie prays judg-mcut it Uie said assij;iKcs ouglit 
 to have or maintain tlieir said action thereupon against him, Sec. To this the plam- 
 tiff demurred g-enerally, and the defendant joined in demurrer. 
 
 This case was arg-ued by Serjeant BootU for the pluiniil.s, and by Mr. Laivson 
 for the defendant. For the plaintiffs it was insisted, that the act of parlianniit lor 
 setting'-ofl'one debt ag-ainst another did not extend to assignees under a commission 
 of b iHicriipt, and that in tlie present case there were not mutual debts, for where- 
 cvcr there are mutual debts there must be mutuij remedies, and the defendant 
 could have no action on his bond against the jilaintills ; and of this opiuivn was tlie 
 court, and gave judgment for the plaintiiis. 
 
 Sinith and others, Assignees of Lc-ms and Potter v. Ilcdson, H. T. Z\ Geo. 
 III. J. D. 1791. 4 T. R. 211. 
 
 A SSUMPSIT for goods sold and delivered to the defendant by the bankrupts, he- 
 fore, and ais') by the assignees since, tJie bankruptcy. Pleas non assumpnit, and 
 a tender of 131/. 7s. 67. which the plaintitis tonk out of court 'i here was idso 
 a set-oft". At the trial h\ Guildhall before Lord Kenyon, a verdict was foiuid for 
 the plaintift's, subject to the opinion of this court on the following case. 
 
 In August, 1787, Lewis and Potter sold goods to tlie defendant to the amount of 
 42/. and on the 4th of Marcli, 1/88, they drew a bill on him at two months for 
 442/. payable to their own order, although at that time he was indebted to them 
 in 42/. oidy, which bill the defendant accepted. Le^uis arid Potter miAe the follow- 
 ing entry in their books : " 4th of March, 1788, receiveel I'rom yames Uodson an 
 acceptance due 7th May, 442/. to bills and notes ; to pro\ide 400/." On the 2()tl» 
 April several bills were refused payment by Leviis and Potter, some r.f which \\i-re 
 presented by bankers on behalf of the indorsees. Onjthe 28th April, 1788, the de- 
 fondant went to the house of Levis and Potter, and bought goods to the amoimt 
 of 531/. 7s. 6./. which were sent to him v.ith a bill of parcels the same day ; iJie 
 goods were sold to the defendant at six months credit. On the 29th of April, 1788, 
 Le^ois and Potter committed acts of bankruptcy. On the 9th of May the con>- 
 mission issued, and tiiey were duly dechu'ed b:inki'upts, and tiie plaintifs ( hosen 
 assignees of their estate and efliects. The bill for 4-1-2/. drawn by the bankrupts, 
 and accepted by the defendant, became due tlie 7th of May, 1788 : the diflnilunt 
 did not pay it on that day, but in Scptc^nber following jjuid to Gibson and yolir:so>i, 
 the holders thereof, 200/. on account of the bill ; and in October f illowing, before 
 the six months credit upon the goods was expired, he paid the residue witli intcrcst- 
 The jury thought the bankrupts gave an undue preference to the defendant in the 
 sale ; and gave a verdict for the plaintilVs, damages 400/. The questions for the 
 opinion of the Court are ; 1st. Whether the plaintifis can support this action for 
 the price of the goods ? 2dly. If they can support this action, whether the defen- 
 dant cannot set-ofl" against it the money paid by him on the above-mentioned bill 
 for 442/. 
 
 Eussell, for the plaintiffs, was desired by the Court to confine himself to the 
 second point, as they entertained no doubt upon the first. As to which he con- 
 tended that though the sale were good to charge the defendant in this action, yet 
 he w:is not entitled to support his set-oH under the 5 Ceo. 2. c. 30. *. 28. (n) 
 The words which will be relied on are mutual credit : But they were l)y no nieana 
 intended to be used in so extensive a sense as the one now put on lluni l)V the de- 
 fendant. The giving of crfi//f is merely giving a future day of ))a\ment fiir a pre- 
 existing debt ; and to entitle a defendant to set it oiV, it must exist prr\ioiis to the 
 act of bankruptcy. As where goods are sold to be paid for at a future day, the 
 
 (a) Which enacts that where " there hath been mutual credit given hv the bnnk- 
 " rapt and any otluT person, or mutual i/e/»f* bet w«cm the bankrupt nm\ any otlier 
 " pcrs m, at any time before such person became bankrupt, the mnunissioners. he. 
 " shall state tiie account between them, anil one debt may be set iij,'ain«t anollieri 
 " and wliat shall a!>')ear to be due on either siih- on the halaiirc ..f snrh rrrDtii.t, and 
 " on setting tuck drhtu tij^iintt oiit another, and no more, bhali be claimed or piud orv 
 '* cit!»er side respectively." 
 
 C
 
 50 APPENDIX. 
 
 sendee becomes a debtor fi)r the value upon the delivery, though payment cannot 
 be exacted from lilm till tlie day arrives : In the meantime the vendor is his credi- 
 tor to that amount ; and in tliat sense only is the word credit to be understood in 
 the act. This ap]5ears further from the subsequent words of tlie statute ; for the 
 commissioners are directed to state the account between the parties, and claim or pay 
 onlv so much as shall appear due on the balance of such account. In order therefore 
 for'a party to set-off any demand, it must be such as may be made an item in the 
 account, and either certain or reducible to a cei-tainty at the time of the act of 
 bankruptcy committed. The ;u-t itself says, that the balance of tlie account is to 
 be made appear " on setting- stick debts against one another ;" which plainly shew s 
 that nothing- more was meant by the word creuits tlu.n such debts as were p:iyable 
 at a futvu'e day. Then how does the statute apply to this case ? There w:'s no 
 debt existing between the bankrupts and the defendant at the time of the bank- 
 ruptcy ; nor was it certain there ever w-ould be one ; i'or in cascoftiie deftiidant's 
 bankruptcy or refusal to pay, the holder miglit have proceeded against the estate of 
 the drawers and recovered the amount ; and that perhaps after the defendant's ac- 
 ceptance had been admitted as an item of account between him and the bankrupts. 
 And at all events no debt could arise till after payment by the defendant, which 
 was long after the bankruptcy, and therefore coidd not be sct-ofi ; for at that time 
 the bill was outstanding in tl-e hands of third persons, and was therefore the sub- 
 iect of mutual credit, if at all, between them and the binkiupts. But in Groome^s 
 case(a) Lord Hard-vcicke was cleai-ly of opinion that a debt arising on a contingency 
 after the bankruptcy, could not be set-oil'. And it has been dctci mined that though 
 a note indorsed after an act of bankruptcy may be proved imder a commission against 
 the drawer, (Zi) yet it cannot be set -oil' against an action by his assignees. (c) The 
 cases Ex parte I)eeze,(d) Ex parte Frescot,(e) and French, assignee of Cox v. i^e«7!,(y) 
 were all of them cases wliere the bankruyjts were actually indebted to the de- 
 fend:mts, bi?fore the bankruptcies, in the sums wliich they set-off against the de- 
 mands of the assignees ; which differs them matcriall}- from the present. But even 
 supposing this were such a demand as could in a fair transaction be set-ofi in a 
 court of law under the statute, yet it cannot avail the defendant in this case, where 
 the whole is vitiated by fiaud. It therefoi-e becomes material to examine what 
 part of the transaction may be substantiated, and wdiat is void. There is no fraud 
 in the mere act of sale ; and the defendant must be bound by that so far as he made 
 himself liable for the amount of the goods : that wo\dd have been the case had the 
 sale been made to a person who was no creditor of the bankrupt's. But tlie objec- 
 tion arises to the fraudulent use now attempted to be made of the sale. No party 
 is entitled to set-off a demand against the assignees of a bankrupt, for which he 
 could not have maintained an action, or wliich he could not have proved under a 
 commission. Now if tlie defendant could not have done either in the present in- 
 §tance, before the bankruptcy, he shaii not be permitted to recover the amount in- 
 directly in this manner; for that would be to permit him to avail himself of his 
 own fraud. 
 
 Gibbs, for the defendant, insisted, first, that if the whole were to be consideretl 
 as a bona fide ti'ansaction, the defendant was entitled to set ofi the sum paid under 
 his acceptance ; and, 2dly. That the finding- of the jviry, as to tlie undue pi-eference, 
 could not vary the case in favour of the plaintiffs in this action. The first question 
 depends on the stat. 5 Geo. 2. c. 30. s. 28 ; the true construction of which is, 
 that wherever there is mutual credit between the bankrupt and another person be- 
 fore the bankruptcy, the debts may be set-ofi' against each other, although one of 
 them may accrue after the bankruptcy, and although that one debt could not foim 
 an item of an account, so as to enalile the bankrupt and sucii other person to strike 
 a balance. The plaintiff's argument, that nothing c;in be set off under the statute, 
 but that which may form an item of an account at the time of the bankruptcy, 
 and the pajrment of which is only postponed for a time, directly militates ag-ainst 
 the decision oi French v. Fenn. If that case be law, the construction now attempted 
 to be put on this statute by the plaintiff's counsel cannot prevail. In that case Fenn 
 
 {a) 1 Atk. 119. ih) Ex parte Thomas, 1 Atk. 73. 
 
 (c) Marsh v. Chambers, 2 Str. 1234. (d) 1 Atk. 228. 
 
 (c) lb. 230. (/) Tr. 23 Geo. 3. Co. M. L. 2d ed.
 
 APPENDIX. 51 
 
 owed nothing' to Cox previous to the bankrujrtcy . so here Lc^is and Potter owed 
 Holsonnoilwwj:; previous to tlieir bankruptcy; but Fenn had bctii intrust; d bv Cox 
 wiih that, upon which he probably would become ins debtor, nitniily the side uf 
 the jewels, in which Cox was interested one-tliird pait ; so Lcviia and Potter had 
 been entrusted by HoUaon widi that ui)()n which tliey probably would become his 
 debtors, ss. with his acceptance for 442/. he having eiiects to the amount of 42/. 
 only ; There, Fain, upon the credit of the jewels intrusted to him, trusted Cax 
 on another accoimt ; so here, Lev:h imd Potter, on tlie credit of the acceptance in- 
 trusted to thorn, trusted Hoison on anotlier account, namely, for the goods in 
 question ; — There, after the bankruptcy of Cox, Fain received a sum of monc}' upon 
 the sale of tiie jewels intrusted to him, which becanu' due to Cox's estate ; so 
 here, after the bankruptcy, HoJson paid a sum of money upon the acceptance in- 
 trusted to them, f )r whicli he has a claim upon tlieir estate. In that case the court 
 allowed the set-olV; and yet at the time of Cox's bankruptcy no balance coiddhavc 
 been struck between the parties, because the defendant's claim arose from tlie 
 produce of the pearls afterwards. What that])roduce would be could not be known 
 at the time of the bankruptcy, and consequently covdd not then form an item in an 
 account between the parties. Secondly. The finding- of the jury, as to the undue 
 preference, is either nugatory as to the plaintifls, or it operates as a ground of non- 
 suit. The plaintiifs have an option either to atlirm or disaHirm the conti-act ; if the 
 former, the defendant is entitled to set-olf his demand ; if tlie latter, though the 
 plaintiffs might recover in trover, they cannot maintain this action. The jury found 
 that there was a fraud in the sale : the plaintiffs cannot tlierefore contend that the 
 fraud is confined to the use made of the sale. If the defendant had obtained his 
 defence by fraud, it would not have availed : but it does not follow that, because 
 there was a fraud in the sale oftlte goods, from tiie bankrupt to the defendant, 
 the latter shall not set-off a cross-demand against the price of the goods. The fraud 
 (if any) was in the sale of the gootls ; and tlie effect, which it lias, is this, (a) 
 tliat the bankrupt conveyed no property in the goods to tiie defendant, and that it 
 was a naked delivery ; if so, the plaintids sliould bring trover, not assumj^sit. 
 
 Russetl in reply. Wltli respect to the case of French v. Fenn, whicli seems to have 
 been principally relied on by the other side, there are two very material distinctions 
 between that and the present ease ; there did exist mutual debts between the par- 
 ties in that case, though the precise amount was not actually ascertained at the 
 time of the bankruptcy ; but still it was capable of being reduced to a certainty at 
 any time by the sale of tlie jewels. And if Fenn had become a bankrupt instead of 
 Cox, it cannot be denied buttiiat Cox miglit have come in under /•'t'»;i'« comini.ssion 
 for a third of the value of those jewels. .'\.gain, in that case the jewels were in the 
 hands of the party between whom and tlic bankrupt the account w:ls to be settled 
 and tlie mutual debts and credits allowed : whereas here the acceptance was in 
 the hands of tlilrd persons at the time of the bankruptcy, without any certainty 
 that they w juld ever be discharged by the defendant. Cur. adv. vuit. 
 
 Lord Ke vvov, Ch. J. n iw lelivered the o|)inion of tiie court. His Lordship, 
 after stating tiie facts, said, W'* have considered tliis case, aiul are of opinion that 
 the defends it li.as nude a sulHcient defence against the action in lis present 
 form, and consequently tiiat a judgment of Ho/ij«/f must be entered. It Is expressly 
 stated in tiie case that the goods in question were delivered by tiie bankrupts to 
 the defendant with a view to defraud the rest of their creditors ; and tlierefore uii 
 aetion miglit have been framed to disifHrm tlie contract, wliicli was thus tiiiclured 
 with fraud ; for if the assignees liad brought an action of trover, tliey might have 
 recovered the value of the goods. 'Pie statute 5 C?co. 2. f- 30. *. 28. enactn tiiat 
 where it shall appear to the commissioners that thire liatii bi-eii mutual credit be- 
 tween the bankrupt and any otiier person, or mutual debts between the bankrupt 
 and any other person, before the l)ankruptcv, the roiiimiKsioiu is or the assignees 
 shall state the account between them, and one delit may he set iigiiiii.ii anotiicr ; 
 and the balance only of sucli accounts sliall he claimed and paid on elllur wide j in 
 the m )st extensive W)rdi. Andtherefirc we are perfectly sutisfied with thirciiHcs 
 ex parte Di.ze,{b) and French v Fenn. Uut if an action of trover lud been 
 
 (a) Co'A B L. Cd cd (A) 1 Atk. 228.
 
 52 APPENDIX, 
 
 broug-ht, instead of assumpsit, this case would have difFered materially from those 
 tw) ; because in both those cases the g-oods had g-ot into the hands of the respec- 
 tive parties prior to the bankruptcy, and without any view of defrauding- the rest 
 of the creditors ; and therefore, accordinj^ to the justice of tb.ose cases, whether 
 tr.)ver or assumpsit liad been broug-ht, the whole account ou^ht to have been set- 
 tled in the wiy in which it was, because the situation of tlic parties was not al- 
 tered with a view to the bankruptcy : but here it was ; and if trover had been 
 brous^ht, the defendant would have had no defence, and those cases would not have 
 availed him. B it this is an action on the contract for tnc goods sold by the bank- 
 rupt. And alth'.)Ug-h the assig-nees may either afhrm or disaffirm tiie contract of the 
 bankrupt, vet if they do affi.-m it, they must act consistently throughout ; tliey can- 
 not, as has' often been observed in cases of this kind, blow hot and cold ; and as 
 the assis^nees in this case treated this transaction as a contract of sale, it must be 
 pursued' tlu'oug-h all its consequences ; one of whicli is, tb.at the party buying' may 
 set up the same defence to an action b'-out^'-lit by the assignees, which he mig-ht 
 have used ag-aiustthe bankrupt himself; and consequently may set-ofi another debt 
 •wh'ch was owniG^ from the bankrupt to him. This doctrine is fully recognised in 
 Hitckinsv. Campbell, {a) and in A7';|' v. Leith.{b) Now here the assig-nces, by 
 brin'/mg' this action on the contract, recognised the act of the banki'upt, and must 
 be bound by the transaction in the same manner as the bankrupt himself would 
 have been ; and if he had brought the action, the whole account must have been 
 settled, and the defendant would have had a right to set-ott'the amount of the bill. 
 Therefjve, on the distinction between the actions of trover and assumpsit, we are 
 all of opinion that a judgement of nonsuit must be entered. 
 
 Judg-mcnt of nonsuit. 
 
 Atkinson and others, Jssi,q,'nee3 of Hodgci, a Bankruht v. Elliot and another^ 
 M. r. 38 Geo. III. A. D. 1797. 7 2'. R. 378. 
 
 O 
 
 jN the trial of this action of assumpsit for money had and received, the follow- 
 ing- case was reserved for the ojjinion of this coui't. 
 On the 2d May, 1796, the defendants sold to Hodges, the bankrupt, 300 barrels of 
 tar for 430/. at 6 months' credit, and on the 3d of the same month tiiey drew a bill 
 on him at six months' date for the amount, Avhich Hodges accepted On the 2d 
 September, 1796, HrJges also purchased at 6 months' credit of the defendants 200 
 barrels of tar for 230/. for which he g-ave the defendants his acceptance to their 
 draft dated 6th September, 1796, at six'months' date. Tlie first mentioned bill for 
 430/. became due on the 6ih November, 1796, which Ho 'ges was not able to pay, 
 but on the 9th of the said month he g-ave the dt fendants a bill upon Walpole and 
 Co. for 100/. die the Ilth of December foUnvinr-, and on the following day {No- 
 •uember, lOJi) indorsed and gave defendants a bill of exchange drawn by him on 
 and accepted by Bulloch and Son, dated 27tli October, 1796, at six weeks after date 
 for 500/. and the defendants gave him the following- memorandum or undertaking: 
 " Memorandum ; I promise to pay to Mr. N. Hodges 170/. when his bill on Messrs. 
 « BuHock and Son is paid, which bill I received November 10th, 1796, (signed) 
 « Thomas E'lht and Co.— Bill dated October 27th, at 6 weeks, f ;r 500/." It 
 •was not in the contcm-^'lation of either party to do more than take up the first men- 
 tioned acceptance of H, Iges with tlie bill of Bullock and Son, and therefore ufier 
 paym-jnt of what wis d le on that acceptance, so given as .aforesaid, for the first 
 iTi'^ntio'ied parcel of goods, the residue was to be returned to Ho Iges. — The accept- 
 ance by Messrs. Bullock and Son for 500/. became due on the 11th of December, 
 1766, and was then dily paid bv them to the defendants, the holders thereof ; and 
 the abivementioned b'll on WilpoleAwlCo. for 100/. was likewise paid on that 
 d -v. On the 13th of 'D:icember, 1796, a commission of bankruptcy issued against 
 H^ Iges who was duly declared a bankrupt, and the nlaintiffs were chosen assignees 
 of 'I'S est-\te and effects. Tiiey immediately applied to the defendants for payment 
 of the 170.''. thev had been overpaid in the said bill for 500/. on Bullock and Son, 
 pursuant to their undertaking above stated, when they objected to it alleging 
 
 (fl) 2 Bl. Rep. 827. (6) Ante 2 'ool 141.
 
 APPENDIX. 53 
 
 that they then held Hodges' acceptance for 230/. above mentioned, and claiming a 
 right to retain the said UOl. in part payment of the same, though it did not bt-come 
 due and payable tilltlie 9th of March last, when the six months' credit for the goods 
 sold to HoJges (which was their usual credit and customary mode of dealing) ex- 
 pired. T le action was commenced on the 12th of Februar',' last. 
 
 Rrakr for the plaintiffs, after stating the question to be wlicthcr the defendants 
 ^vere entitled to set-ortthe bankrupt's acceptance, or rather to retain tlie 170/. the 
 remainder of the bill for 500/. towards satisfaction of their demand on the b:inknipt 
 for 230/. the price of the goods sold by them to him on the 2d of Septtmher, 1796, 
 argued in the negative. This question depends on the contract between the parties 
 made on the 10th of November, 1796. Now tlic deposit of the bill for 500/. with 
 the defend.ints on that day was not a general deposit to answer all demands that 
 they might have on the bankrupt, but for the specific purpose of securing to tlieni 
 the 23J/. the remainder of the value of the first goods sold by them to the bank- 
 rupt ; and by that memorandum the defendants expressly agreed to return the over- 
 plus of 170/. to the bankrupt as soon as the bill for 500/. was paid. Tl>e attempt, 
 therefore, on the part of the assig-nees, to retain this in satisfaction of anotlier debt is 
 in direct opposition to their agreement ; it being stated as a fact in the case tliat 
 nothing more was in the contemplation of the parties, when the bill for 500/. was 
 deposited with the defendants, than to secm-e to them the amount of the bankrupt's 
 first acceptance for the first parcel of tlie goods. As between the original parties 
 to this contract it is clear tliat tlie defendants coid<l not have had any lien on the 
 bill for 500/. for any other demand tlian that expressed in the memorandum ; and 
 the bankruptcy of Hodges cannot put the defendants in abetter situation than they 
 were in bcf)re. It will be contended, however, on behalf of the defendants tliat it 
 is immaterial by what means they got this money into their hands, but that having 
 got it they are entitled to set-ofi"their second demand against it by virtue of the stat. 
 5 Geo- 2. c. 30. j. 2S.(fl) And it cannot be denied but that some debts may be sot- 
 oft" im.ler this statute that were not due at the time of the bankruptcy on tiie ground 
 of tiiere being mutual credit between the parties ; as in tlie cases Ex Parte Prcs- 
 cott, 1 Atk 230; French v. Fenn, Tr. 23 Geo. 3. B. R. and Smith v. Hodgson, ante 4 
 vol. 211. But on examination it will be found that this c:;se docs not come within 
 the meaning of the statute respecting " mutual credit ;" for that only applies to ca- 
 ses where mutual credit has been given in the ordinary course of commercial 
 transactions : whereas this is not a case of that description, the bill for 500/. liaving 
 only been deposited with the defendants for a particular purpose. Tlie property in 
 that bill was never in the defendants for a single moment ; they held it merely as 
 ti-ustees for the bankrupt. But even if this were a case of mutual credit, the de- 
 fendants are not entitled to retain tlie overplus of 170/. by reason of their express 
 stipulation. Suppose tlie defendants had undertaken to pay this surjdus to a third 
 person, instead of the bankrupt, there would have been no jiretence to say that they 
 could have retained it on the groimd of their having another demand on the bank- 
 rupt ; ancTif not, they cannot retain it as against the asbignecs of tlie bankrupt. 
 
 Gaily, contra, was stoppc<l bv the court. 
 
 Lord Ken-yon-, Ch. J. The" statute 5 Geo. 2. c. 30. *. 28. enacts, that where 
 there are either viutual credits or mutual debts between the banknipt and any other 
 person, one debt may he set off against another, and only the balance elaimed. 
 Now in using those words the legislature must have intended something more than 
 would have been expressed by "mutual debts" only ; and the jlecisions referred to 
 show that this construction has been put upon tlii;: act. I agree to what was said 
 by Mr. J. .flu//er inone of thecases, that where there is a tnist between both pariie* 
 there is a mutual credit. Justice also requires that the whole account t)n Itoth M(h» 
 should be stated; and that tlic balance should be the only thing to coiistitnte the 
 
 (a) Whieh enacts, thr.t where it shall appear to the commissioners that tliere 
 hatli been mutual credit given by the l)ankiiii)t antl any olhrr pirsoii, or mutual 
 debts between the bankrupt and any other person, at anytime before huch pernon 
 became bankrupt, the said commissioners, .ic. shall Mtate the account Int ween 
 them, and one <lelit may be set against anr)ther ; and what shall aplM-ar to be due 
 on either side, on the balance of such account, and on setting (turh debtn ngaiiul 
 pnc another, a;idnu m-jrc, shall be claimed or p:ud on cither side rtti'ecU\cly.
 
 54 APPENDIX. 
 
 debt. In my opinion the case Ex parte Prescott was properly decided; and that 
 lias since been followed by a series of determinations. 
 
 Grose, J. It has been objected that the defendants cannot set-off the 170/. be- 
 cause it is contrary to their express as^reement : but consider that the bankrupt by 
 his agreement was bound to pay his acceptance for 230/. at a future day, but that 
 his bankruptcy disabled him ; that was a credit on one side ; and credit was con- 
 stituted on the other by giving a bill which became due at a subsequent time. It 
 is clearly therefore a case of mutual credit, and it is just that one demand should 
 be set-off against lhe"other. 
 
 Lawrence, J. Tliis is direct'y within the authority of the case Ex parte Pres- 
 cott. 
 
 Per Curiam. Postea to the defendants. 
 
 Grimwoodv. Barrity M. T. 36 Geo. III. A. D. 1795. 5 T. R. 460. 
 
 D^BT on bond for 1400/. dated July 20th, 1787- The defendant craved oyer of 
 the condition, which w.is that the bond should be void on payment of 700/. 
 on ',1e 24th of June, 1788, together with lawful interest for the same from the 24th 
 of-yune, then last ; and then pleaded, first, that there was due from him to the 
 plaintiff on the bond " a much less sum than 1400/. to %vit, the sum of 735/. and no 
 more ;" and that tlie plaintiff at tlie time of exliibiting his bill was indebted to him 
 (the defendant) in a much larger sum of money, to wit, 1200/. for goods sold and 
 delivered, &c. which he is ready to set-off. He also pleaded that on the 20th of 
 July, 1787, it was corruptlv agreed between him and the plaintiff that the latter 
 should lend him 700/. to be' repaid on the 24th of June, then next, and that he (the 
 defendant) should pay the plaintifl' interest at the rate of 51. per cent, from the 24th 
 of June, 1787, to the'24Lh of yiine, 1788, namely, one yeai-'s interest, and give a 
 bond for securing payment of the whole ; and that in pm-suance of the said coiTupt 
 agi'eement the bond in question was given. 
 
 To tiij first olea the plaintiff replied, that there was due on the bond more than 
 735/. namely 835/. 0* 71 ; concluding to the country ; and he traversed the corrupt 
 agreement mentioned in the second plea. The defendant demurred specially ; for 
 causes of demurrer to the replication to the first plea, (he said) that the plaintiff 
 had not by his replication given any answer to tlie plea, nor admitted or denied 
 that the plaintiff was indebted to the defendant in manner and form as in the plea 
 alletred. The causes of demurrer to the replication to the second pica were, that 
 the plaintiff had not in his replication given any answer to the plea, or denied that 
 by the condition of the bond there is expi-essly reserved above the rate of 51. per 
 cent. &c. for a shorter time than a year, 8cc. 
 
 Morgan, 'r\ support of the demurrer. First, the defendant, having pleaded that 
 the sum of 7o5l. under a videlicet w is due on the bond, was not bound to prove that 
 tliat specific sum was due, but it was competent to him on that allegation to prove 
 either a gi-eater or a less sum ; and therefore that averment was not traversable In 
 the replication. In this respect tins case is distinguishable from that of Sjinmons 
 V. Knox,{a) where it was lield that an averment that a precise sum only was due 
 on the bond, was traversable ; for there It was not laid under a videlicet. Second- 
 ly. This appears to be usvu-y m the condition of the bond itself; for a year's in- 
 terest is reserved on a particular sum, though the forbearance Is stated to be for a 
 less time than a ye.ar, nam.ely from 20th of July to the 24th of June following. And 
 e%-en If the plaintiff had intended to show that the money \\ as not lent on tlie day 
 when the bond was given, according to the ])rinclple established in Collins v. Blan- 
 tem,(^b) he should have protested against the corrupt agreement, and pleaded that 
 the money was lent on the 24th of June, 1787, for a year, but that the bond for se- 
 curing it was not executed until the 20th of July following. 
 
 Dampitr, contra. The case of Sy7mnons v. Kno.\ must govern this ; it being im- 
 material in such a case as the present whether the sinn be or be not pleaded under 
 a videlicet. For though the want of a videlicet may in some cases make an aver- 
 ment material which would not otherwise be so, yet the addition of a videlicet can- 
 dot render a material averment immaterial, (c) or prevent the ad\ erse party deny- 
 
 (a) Ante 5 vol 65. (6) 2 jnls. 347. (c) Vld. 1 Saund. 169.
 
 APPENDIX. 55 
 
 ing it. With respect to the other point : tlie corrupt agreement, which is stated in 
 the ple:i, is denied in the replication ; and tliere being- "u demurrer to tluit, tite non- 
 existence of :uiy corrupt agreement is admitted on the record. Therefore, the de- 
 fendant, to maintain tliis demurrer, must pro^e that the loan of money secured by 
 a bond dated yulj' 20th, and conditioned for the pajnient of a sum of money with 
 interest at 5/. per cent, calcidated frotn a past day, must necessarilj have been made 
 on the day when tlie bond was g-ivcn, and tluit this is so necessMy a conclusion of 
 law that adcniid of the fact, and thatdeni:d admitted on tlie record, cannot wciph 
 ag-ainst it. But tliat is in eO'ect saying tiiat tlie court are bound to infer corruption 
 against the fact, when that iact is admitted on the record It might equally be said 
 that in an action on the statute against usury for a penalty this bond wi uld be con- 
 clusive evidence cf usury against the plaintiif, notwithstanding he could prove tiiat 
 the money was in fact lent on the 24th of jfune, 1787. In Collins v. Blanttrn it 
 was hehl that an unlawful consideration miglit be aven-ed against a bond which 
 Was good on the f ice of it : then here tlie ])laintifl' may aver a lawful consideration 
 consistent with and explanatory of the bond. 
 
 Lord Ken'yoij, Ch. J. Where an averment is material, the addition of a vide- 
 licet does not render it immateriid. And on the other point there is not the least 
 doubt ; the defendant might have taken issue on the corrupt agreement, the exist- 
 ence of which was denied by the replication ; on that issue tlie whole case might 
 have been gone into before the jury. But on this record we must take it for gran- 
 ted that the money was in fact lent in yuiis, tliou'gh the bond was not given until 
 ^m/c. And the justice of tlie case periLctly coincides with our determination. 
 
 Grose, J. This plea being founded on the statute 8 G. 2. r 24. s. 5. it was 
 necessary for the defendant to show how much was due on the bond : he accord- 
 ingly pleaded that the sum of 735/. and no more was due, and this was traversable 
 according to the case of Synnnoiis v. Knox. But it is said that the averment of the 
 sum here is laid under a videlicet, which was not the case in Summons \. Knox .- 
 but the rule is, that where any tiling in pleading is material, it is not rendered less 
 material by its being pleaded with a videlicet ; it is still traversable ; and therefore 
 this case must be go\ erncd by that of Sjmino7nt v. Knox. With respect to the other 
 plea of usury ; the corrupt agreement is denied by the plaintliT. It is however con- 
 tended that notv.'ithstanding that denial it must be understood, from what appears 
 upon tlie face of the bond, that there w:is an usurious agreement, because the court 
 must infer that the money was lent on the day when the bond was given : but such 
 an inference is contrary to the fact ; it is not alleged that the money was lent wiien 
 the bond was given ; and on the contraiy it is admitted by the demurrer that therr- 
 was no such usurious agreement as is stated in tlie plea, and if so, the money wa.s 
 not lent on the day that the bond bears date. 
 
 Lawrence, J. As to the last point : the plea consists of two parts ; it first 
 states that there was an usurious contract between the parties, and tiicn allegis that 
 the bond was given in ptusuance of that agreement. It was sufficient for the plain- 
 tiff to dcnv cither of these p^arts in his replication, becau.se both were essentisd t«» 
 establish the plea : and the plaintiff having traversed the corrupt agreement, the 
 defendant, if he iiad meant to rely on its existence, should have taken issue on it : 
 whereas, by demurring to the replicativin, he has admitted that there was no such 
 agreement. With regard to the other plea : it was necessary for the defendant u> 
 show the real sum due on the Ixnid to entitle him to liis. set-off: and it w:is decided 
 in Sjmmons v. Knox that the averment of that sum was traversable. The <iuestioii 
 therefore here is. Whether the introduction i.f tlie videlicet in this cas*- makes any 
 difference ; but it certainly does not. That it does not render an averment imma- 
 terial, whicli, without the videlicet is niaterial, has been decided in many r»»cs. 
 In yofiruon V. Piciet and another,(«) which was an action on the statute uguinsl 
 usury, tlie agreement to forbear and give day of pujment was stated in the dorla- 
 ration to be on the 14tli und.-r a videlicet, but it was jiroved tjiat the mc.nev was 
 not advanced until the 16th; on which Lord A/ww.y/c/,/ nonsuiteil tlie plaintiff, 
 being of opinion that thi- day from wlience tlie forbearance took |)lacc was ninti rial, 
 though laid luuiiT a vid. licet ; and on a motion for a new trial this ourt confirnifd 
 the decision at Nisi Piius. So in the ctsc of Pofie v. Fo*icr,i/>) which w*» an 
 
 (a) F.. '1% Go. .". n U ('•) Arte 4 vol. 590.
 
 56 
 
 APPENBIX. 
 
 action for a malicious prosecution, the declaration stated tliat the indictment 
 " afterwards, to ivit, on the 25th oi' February 1791, came on to be tried ;" by the 
 record of that indictment it appeared that tlie trial was on a diflerent day ; on 
 which the plaintifi' was nonsuited ; and on a motion to set aside that nonsuit, this 
 court thought the objection fatal, " though it were laid under a videlicet, the 
 day being material" 
 
 Judgment for the Plaintiff
 
 INDEX. 
 
 A 
 
 CCOUNTS. 
 
 connected, 1 . 
 
 unconnected, 1 . 
 
 how balanced in bankruptcy, 56. 
 
 ACTION. 
 
 how far debt must be due at commencement of, 15, 17, 35. 
 
 in wliat a set-ofi"may be given in evidence, 19. 
 
 for arrears of annuity, 20. 
 ADMINISTR.\TOR, 15, 18,23,34. 
 AGENT and PRINCIPAL, 23, 29. 
 AGREEMENT. 
 
 special, 19, 
 ANNUITY, 20. 
 ARREST. 
 
 illegal, without deducting an opposite demand, 5. 
 ASSIGNEE of bail bond, 28. 
 
 of bankrupt, 49, 61. 
 ASSUMPSIT. 
 
 for general damages, 19. 
 
 for a sum certain, 19. 
 ATTORNEY. 
 
 his lien in K. B. and C. P. 12. 
 
 his bill when to be set-off, 36. 
 AUTER DROIT, 18, 24, 51. 
 
 BAIL BOND, 28. 
 
 BANKRUPTCY, 46. 
 
 BILL of EXCHANGE, 49, 5 5. 
 
 particulars, 63. 
 BOND. 
 
 joint and several, 25. 
 
 bail, 28. 
 
 of indemnity, 54. 
 
 CASE, 18. 
 
 CO -M .MISSION, del credere, 30. 
 CO>4NECTED ACCOUNTS, 1. 
 CONTINGENT DEBTS, 53. 
 CORPORATION, 27.
 
 58 INDEX. 
 
 COSTS. 
 
 interlocutory, 5. 
 COVENANT, action of, 19. 
 COUNTRY CAUSES, Set-off in, 40. 
 COURT, inferior and superior, o7 . 
 
 payment of money in, 40. 
 CREDIT, mutual, 47. 
 
 DAMAGES. 
 
 liquidated, 21. 
 
 unliquidated, 21. 
 DEBTORS, insolvent, 46, 59. 
 DEBTS. 
 
 contingent, 52. 
 
 extinguishment of, 20. 
 
 joint and several, 23, 61. 
 
 mutual, 15, 18. 
 
 of plaintiff, 18. 
 
 on bond, 19. 
 DEFENDANT'S demand, 18, 20. 
 DELIVERY of GOODS. 
 
 set-off before, 21. 
 DEMAND, equitable, 48. 
 DEMURRER, 44. 
 DETINUE, 18. 
 
 DISCHARGE from execution, 20. 
 DIVIDEND in Bankruptcy, 55. 
 
 EQUITABLE SET-OFF. 
 
 at laM-, 10. 
 
 in equity, 61. 
 
 demand, 48. 
 EXCHANGE, bill of, 49, 55. 
 EXECUTION, discharge from, 20. 
 EXECUTOR, 15, 18, 23, 34, 40. 
 EXTINGUISHMENT of DEBT, 20. 
 
 FORFEITURE of penaltv, 54. 
 
 FORTY SHILLINGS, debt reduced to, by set-off', 37. 
 
 GENERAL ISSUE, 15. 
 GREAT SEAL, 57. 
 
 HUSBAND and WIFE, 23, 33. 
 
 INDORSEMENT of BILL, 56. 
 INSOLVENT DEBTOR, 46, 59. 
 INSURANCE, i^olicy of, 55. 
 INTERLOCUTORY COSTS, set-off of, 5. 
 INTESTATE, 15, 18,22.
 
 14. 
 
 INDEX. 59 
 
 JOINT and SEVERAL. 
 
 bond, 25. 
 debtors, 23. 
 JUDGMENT. 
 
 Set-off of, at common law. 
 
 in different courts, 7. 
 different sorts, 8. 
 equitable demands on, 10. 
 under the statute, 36. 
 entry after, 45. 
 JURISDICTION of COURT, 37. 
 
 LEGACY, 48. 
 LIEN in general^ 49. 
 
 of attornetf.) 12. 
 
 in K." B. 
 
 inC. P. 
 LIMITATIONS, statute of, 20, 45. 
 LIQUIDATED DAMAGES, 21. 
 
 MALICIOUS PROSECUTION, 5. 
 MONEY, payment into Court, 40. 
 MOTION, set-off bv, 6. 
 MUTUAL credits, 47, 
 debts, 15, 17. 
 
 NOTICE of SET-OFF, 15, 
 
 at wluit time it must be given, 41. 
 
 general, 41. 
 
 special, 41. 
 
 generally given in country causes, 4 1 . 
 
 nature of, 40. 
 
 OPTION, defendant's, to set-off, 37. 
 
 P \RTICULARS, Bill of, 67. 
 PARTNERS, 23, 24, 25, 26. 
 
 dissolution of, 61. 
 PAYMENT of Money into Court, 40. 
 PENALTY. 
 
 in speci »lty, 15, 40. 
 
 forfeited at law, 54. 
 PEPJURY, 5. 
 Pi.AINTU- 1- 'b demand, 18. 
 PLEA of SET-OFF, 1 5, 44. 
 
 in t^eneral, 44. 
 
 in the case of a specialty, 45. 
 
 whetlier pleadable after rule lo abide by plea, 4U. 
 rule to abide bv, 40. 
 PLEADlNi; SK'I-oVf. 
 
 ill baiikiuj)i(:y, 46. 
 
 niofic of, 3.). 
 
 wncn obii^jalory or optional, 15, 40.
 
 60 INDEX. 
 
 when defendant's demand is the greatest, 40. 
 
 or tiie least, 40. 
 PRACTICE, 63. 
 
 PREFERENCE of Notice or Plea, 40. 
 PRINCIPAL and AGENT, 23, 29. 
 
 and Surety, 55. 
 
 REPLEVIN, 18. 
 REPLICATION, 44. 
 
 SEAL, Great, 57. 
 SET-OFF, at Law. 
 
 common, 5. 
 
 by statute in general, 15. 
 SPECIALTY 15. 
 
 STATUTE of LIMITATIONS, 20. 
 SURETY, 53. 
 SURPLUS, 61. 
 SURVIVORSHIP, 54. 
 
 TESTATOR, 15, 18, 22, 39. 
 TORT, 18. 
 TRAVERSE, 43, 45, 
 TRESPASS, 18. 
 TRUSTEES, 23, 27. 
 
 UNCONNECTED ACCOUNTS, 1. 
 
 are the subjects of set-off, 1 . 
 UNDERWRITER, 55. 
 UN LIQUID ATD DAMAGES, 21, 
 USURY, 48. 
 
 VERDICT, 38. 
 
 WAIVER of SET-OFF, 37. 
 WIFE and HUSBAND, 2o, 33. 
 
 F I J\ri S.
 
 000 744 287 
 
 m
 
 11 
 
 m 
 
 
 I 
 
 m 
 W 
 
 U.> 
 
 u 
 
 ;,/' ( ''