unjust, because the defendant having obtained the goods at a lower or ready-money price, thereby attempted to avail himself of a mode of payment adapted to a credit-price; but the court answered, that in estimating the plaintiff's damages, the jury might take into consideration the loss he had sustained by not being paid in ready money. In Cornforth v. Rivett (q), it was held that upon such a contract the defendant might even set off the plaintiff's acceptance, of which the plaintiff had become the holder after the sale and before the delivery of the goods: Lord Ellenborough observing, that supposing that it could have been shown that the bill was really the bill of another person put into the defendant's hands, to set off against his debt, that might have presented a different question.

And it has been decided that an express agreement by a broker that he will sell goods for his principal, and pay over the whole proceeds, without setting off a debt then due to him from his principal, is not binding upon the broker, so as to deprive him of his legal right of lien or set-off, although the plaintiff declare specially upon such agreement (r).

And although a creditor borrow money from his debtor, and give a promissory note for it, and afterwards expressly promise repayment, a set-off is available (s).

If the moneys claimed under a special count for damages may also be recovered under the common count in the declaration, and the defendant plead a set-off as to the latter count, he shall have the benefit of his set-off, and the plaintiff shall not be permitted to exclude it by having declared specially (t). It would be unjust to deprive a defendant of his set-off, because the plaintiff has, without occasion, inserted a special count as for damages, in his declaration upon the demand included in the common count. On the other hand, there are some cases in which a set-off may be excluded by declaring specially for damages. Thus, if a bill

be delivered by A. to B. for a special purpose, viz. to deliver it to a creditor of A. in payment of a debt, but B. receive and retain the amount, A. may avoid a set-off for money due from him to B., by suing the latter specially for the breach of the promise to deliver the bill to the creditor; and if A. sue merely for money had and received, B.'s set-off will be available (u). And a set-off against the holder even of an overdue bill of exchange may be defeated by his indorsing it to a third person for value, without notice of the set-off (x).

It will now be proper to consider what debts or demands due to a defendant, may by virtue of the statutes, be made the subject of a set off.

We have seen that only a debt due to the defendant falls within the principle of the statutes.

In an action by a servant against his master for wages, the latter cannot set off the value of goods lost by the servant's negligence; but if it be proved to have been part of the original agreement between them, that the servant should pay, out of his wages, for all his master's goods lost through his negligence, the value of the goods so lost may, we have seen, be deducted under the general issue from the amount of the wages (y).

It appears that the price of goods bargained and sold, but not delivered in consequence of the plaintiff's refusal to pay the money, so that the defendant has a lien on the goods for the price, may be set off (z); or money due on a judgment, though a writ of error be pending thereon (a).

The defendant cannot set off a debt due to him upon a judg ment, whereon he has charged the plaintiff in execution; and the plaintiff may reply such taking in execution (b). In such case, however, the court, on application, will permit the defendant to enter satisfaction on the roll, in the action against him, on his acknowledging satisfaction for the same amount, in the action at his suit (c). And it is no answer to a set-off that the defendant has sued, or obtained a verdict, for the amount (d).

There can be no set-off in respect of a debt barred by the Statute of Limitations, unless the claim has been revived by a written and signed acknowledgment, or a part payment (e). And if the plaintiff intend to rely upon the statute, as a bar to a plea of set-off, he should reply specially that the causes of set-off did not accrue within six years next before the commencement of the trial (ƒ); but if the defendant give notice of set-off, the lapse of six years may be objected by the plaintiff for the first time at the trial (g).

Although an attorney cannot recover his bill for business done in a court, unless he has delivered it, signed, a month before action brought (h), yet he may set off the amount, provided he deliver the bill before the trial; but it is immaterial that at the time of the trial a month from the delivery had not elapsed (i).

A debt cannot be set-off, unless actually due and in arrear at the time of the commencement of the action, that is, when the writ was issued. Therefore a plea, stating that the plaintiff was indebted to the defendant "at the time the plaintiff declared," or "at the time of the plea pleaded," is bad (k). Nor can there be a set-off, or deduction, on account of money secured by a promissory note, or bill of exchange, not due when the suit was commenced (1). So where two cross-actions were referred to arbitration, and in one (trespass) the arbitrator found for the plaintiff 40s. damages, with costs; and in the other action (assumpsit) he awarded 1027. to the plaintiff therein, such sum to be paid at a future day; it was held that the latter could not, before that day, set off that sum against the damages and taxed costs in the action of trespass (m).

Although the debt sought to be recovered, and that intended to be set off, need not be of the same nature or degree, to entitle the defendant to avail himself of this defence, it is necessary that they should be mutual, and due in the same right (n).

Therefore, in an action by two persons, the defendant cannot set off a debt due to him from one of the plaintiffs; nor can one

(e) 9 G. 4, c. 14, s. 4; ante, 641. (f) Chapple v. Durston, 1 C. & J. 1. (g) Remington v. Stevens, Stra. 1271; Bull. N. P. 180.

(h) Ante, 446; note, (2)

(i) Bulman v. Birkett, 1 Esp. R.

449.

(k) Evans v. Prosser, 3 T. R. 186; Eland v. Karr, 1 East, 376.

(1) Rogerson v. Ladbrooke, 1 Bing. 93; 7 Moore, 412, S.C.

(m) Young v. Gye, 10 Moore, 198.

(n) Lloyd v. Archbowle, 2 Taunt. 327; Grant v. The Royal Exchange Assurance Company, 5 M. & Sel. 439. The same rule applies in Equity, Gale v. Luttrell, 1 Y. & J. 180; E. Chitty, Eq. Ind. tit. Set-off.

of several defendants set off a debt due to him alone from the plaintiff (o). But, on the death of one or two more joint creditors or debtors, the legal right, or liability, survives, and vests in law exclusively in, or against, the remaining creditor or debtor. Consequently a debt due to the defendant as surviving partner, may be set against a debt due from him in his own separate character (p). And a debt due from the plaintiff as surviving partner, may be set against a debt from the defendant to the plaintiff in his own right (q).

It has been decided that in an action on a policy, effected by the plaintiff in his own name, but in which others are interested with him, the defendant cannot set off a debt due to him from the plaintiff only, although it accrued before he had notice that others were interested (r). But the general rule appears to be, that if a person carry on business as the ostensible sole proprietor, and yet sue with a dormant partner, the defendant may set off a debt due to him from the ostensible partner; the defendant having been ignorant, when he contracted the debt sought to be recovered, that the plaintiff had a partner and having trusted the plaintiff as sole proprietor before he was aware that he had such partner (s).

A defendant sued as executor or administrator, cannot set off a debt due to him personally; nor can a person who is sued for his own debt, set off a debt which accrued to him in his representative character (t).

The statute does not allow the defendant to set off a debt due to him from the plaintiff's testator, against a debt which accrued to the plaintiff, in his representative capacity, after the testator's death; for this would be altering the due course of the distribution of assets, and the defendant might thus be indirectly paid

(0) Unless there be an express agreement that it be allowed; Kinnerley v. Hossack, 2 Taunt. 170. As to a setoff in the case of a joint and several obligation, where one debtor alone is sued, and the plaintiff is indebted to the other debtor; 2 Pothier by Evans, 68.

(p) Slipper v. Stidstone, 5 T. R.

493.

(9) French v. Andrade, 6 T. R.582. (r) Grant v. Royal Exchange Assurance Company, 5 M. & Sel. 439;

per Lord Ellenborough, C. J. But note, the decision of this point was not necessary; the set-off was not available, as the action was to recover unliquidated damages.

(s) Stacey Ross v. Decy, 2 Esp. R. 469, note, cor. Kenyon, C. J. See Lloyd v. Archbowle, 2 Taunt. 324; Skinner v. Stocks, 4 B. & Al. 437; 1 Chitty Pl. 5th ed. 12, 13; see Cothay v. Fennell, 10 B. & C. 671.

(1) Per Willes, C. J, in Hutchinson v. Sturges, Willes R. 263, 264.

before creditors of a higher degree (u). And this doctrine holds, whether the plaintiff declare as executor, or sue, as he may do, in his private character, for the debt which accrued due to him since the testator's death (r). Thus where A., being appointed by B. to receive his rents, after the death of B. received money due to him in his lifetime, it was held that 4. could not set off against the executrix of B., who brought an action for this debt in her private capacity, a debt due to him from the testator; for the testator himself never had any cause of action against the defendant (y). To an action by the executors of an underwriter against an insurance broker, for premiums which accrued due to the testator, the defendant cannot set off returns of premium which became due after the testator's death (z). And a defendant sued by an executor, for money due to the testator, cannot set off the amount of a promissory note, given by the testator, but not due until after his death, and after the commencement of the action (a).

In an action against a husband for his own debt, he is not allowed to set off a debt due to him in right of his wife (b). Nor can a debt due from the plaintiff's wife dum sola, be set off against an action by the husband only; unless the latter has, on some new consideration, made the debt his own, so that the wife would not be a necessary party to an action for the recovery of the demand (c). If a note be made payable to a married woman after coverture, her husband may sue alone thereon; and a debt due from the wife before marriage cannot be set off against his claim (d).

It has been held that in an action by a mere trustee, the defendant may set off a debt due to him from the party beneficially entitled to the money sought to be recovered. In debt on bond, the defendant pleaded that it was given for securing 1007., lent to the defendant

(u) Per Willes, C. J., in Hutchinson v. Sturges, Willes, R. 263, 264.

(x) Shipman v. Thompson, C. P. 11 G. 3, Willes R. 103; Bul. N. P. 180, S. C.; Kilvington v. Stevenson, and Tegetmeyer v. Lumley, cited Willes R. 264, note (a). In Kilvington v. Stevenson, the action was in covenant to recover rent, part of which accrued to the testator and part after his death; and a set-off in respect of a debt due from the testator was not allowed.

(y) Shipman v. Thompson.
(2) Underwoodv.Robertson, 4 Camp.

342.

(a) Rogerson v. Ladbroke, 1 Bing. 93; 7 Moore, 412, S. C.; Houston v. Robertson, 6 Taunt. 448,451; 2 Marsh. 138, S. C.

(b) Paynter v. Walker, and Cooke v. Dixon, Bul. N. P. 179.

(c) Wood v. Akers, 2 Esp. R. 594. (d) Burrough v. Moss, 10 B. & C.

558.