And see Fair v. M'Iver, 16 East, 130; Wake v. Tinkler, ibid. 36.

10. In an action for premiums by executors of underwriter against insurance broker, he cannot set off or deduct returns of premium which accrued after testator's death. Houston and others, executors of Nicholson v. Robertson, 4 Campb. 342. Gibbs, C. J. 1815.

11. Auctioneer may sue the vendee in his own name, though the name of

5. But if he make himself individually liable by ordering the debt to be paid after marriage, the set off will be al-the vendor be declared at the time of lowed.

Ibid.

B. (b) In cases of partnership.

In

sale. Atkyns and Batten v. Amber, 2
Esp. 493. Eyre, C. J. 1796.
And see Coppin v.
Craig, 7 Taunt,
243; Coppin v. Walker, ibid. 237.
12. Where brokers without a del

their own names

6. A. and B. being indebted to B. who carried on a separate trade, remit credere commission, effect policies in to him a note given to them by C. "as agents," they an action by B. as indorsee, against C. cannot, in an action for premiums by the latter may set off any demand which the assignees of a bankrupt underwriter, he has against the partnership. Puller set off a total loss accruing, but not adand others, assignees of Ferbes and justed before the bankruptcy, although Gregory, bankrupts, v. Roe and others, Peake, 197. Kenyon, C. J. 1793. And see Hanson, ex parte, 12 Ves. 346; Stephens, ex parte, 11 Ves. 27; Twogood, exparte, ibid. 517, 9.

7. In an action brought by an ostensible and dormant partner, the defendant may set off a debt owing to him from the ostensible partner only. Stacy, Ross, et alt. v. Decy, 2 Esp. 469, n. Kenyon, C. J. 1789.

S. C. 7 T. R. 361, n.

their hands, and they have actually paid the policies have always remained in the amount of the loss to the assured. v. Langhorn and others, 4 Campb. 396. Bakers and others, assignees of Gregory, Gibbs, C. J. 1815.

13. In an action by an underwriter against an insurance broker for the set off an average loss adjusted by the amount of premiums, the latter may plaintiff, the payment of which the broker has guaranteed to the assured under a del credere commission. Wienholt v. Roberts, 2 Campb. 586. Ellenborough, C. J. 1811.

And see Grove v. Dubois, 1 T. R. 112; Whitaker v. Rush, Ambl. 407; ante, PLEADING, pl. 42.

B. (d) In respect of special contract.

14. So where goods are sold for bill at two months, which the vendee refuses to accept, there can be no set off, if the action be brought before the expiration of the two months. Hutchinson v. Reid, 3 Campb. 329. Ellenborough, C. J. 1813.

And see VENDOR AND PURCHASER, C. post.

15. Where A. delivered goods to B. for sale, upon an agreement that B. should retain a certain part of the proceeds against a debt to him from A. and

should pay over the residue to A., it 24. Where there are cross demands was held, that B. could not set off the arising out of one transaction, and the remainder of his debt in a special action plaintiff keeps alive his claim by confor a breach of the agreement, in not tinuing down process, the statute of paying over the residue of the proceeds. limitations will not be considered to run Colson et alt. assignees of Hunter, v. against the defendant's set off. Ord, Welsh, 1 Esp. 379. Kenyon, C. J. esq. v. Ruspini, 2 Esp. 570. Kenyon, C. J. 1797.

1795.

16. Where upon a plea of set off in debt on bond, the plaintiff takes issue upon the sum alleged to be due, according to the consideration of the bond, he is bound to prove a larger sum due. Bell v. Shaw, Holt, 293. Gibbs, C. J. 1816.

C. SUBJECT MATTER OF set off.

17. A manufacturer who refuses to deliver goods ordered, without payment or security, may set off the amount as goods bargained and sold. Dunmore v. Taylor, Peake 41. Buller, J. 1791.

18. An overpayment of rent under the threat of a distress, cannot be set off as money had and received to the tenant's use. Knibbs v. Hall, 1 Esp. 84. Kenyon, C. J. 1794.

Recognized in Lothian v. Henderson,

3 Bos. and Pul. 530.

19. To enable an attorney to set off his fees he must deliver a bill signed. Bulman v. Birkett, 1 Esp. 449. Kenyon, C. J. 1796.

25. Unliquidated damages cannot be set off. Crawford and others v. Stirling, 4 Esp. 207. Ellenborough, C. J. 1802.

Acc. Freeman v. Hyett, 1 Bla. 394; Dowsland v. Thompson, 2 Bla. 910; Howlett v. Strickland, Cowp. 56; Waters v. Weigall, 2 Anst. 575; Weigall v. Waters, 6 T. R. 488; Gillett v. Mawman, 1 Taunt. 137, 40; ante, PLEADING, pl. 41.

26. A custom in trade to set off damage to goods dyed in the general account, is a sufficient defence, without previously ascertaining the amount of damage. Bamford v. Harris, 1 Stark. 343. Ellenborough, C. J. 1816.

N. But in some cases the amount may be recouped from the damages sustained by the other party. Dyer, 2 b; Br. Abr. tit. Abridgment 26; ibid. Assize, 140; ibid. Damages, 7, 94, 96, 99, 132; ibid. Emblements, 11, cites 24 E. 3. 50; ante, ACTION, É; Agent, A. 15; post, pl. 31.

And see Sherborne v. Siffkin, 3 Taunt. 525; Nichols v. Philips, 3 Anst. 636.

20. But it is not necessary that a 27. Where A. guarantees the paymonth should intervene between the ment of goods furnished by B. to C.; delivery of the bill and the trial. Ibid. and B. upon the insolvency of C., ad21. Defendant may set off a debt, for mits the amount of the goods, and of the recovery of which he had brought his consequent liability, such amount an action against the plaintiff before cannot be set off, in an action by A. any debt had accrued from him to the against B. Crawford v. Stirling, ubi plaintiff. Knibbs v. Hall, one, &c. supra. Peake, 210. Kenyon, C. J. 1794.

S. C. not S. P. 1 Esp. 84.

22. Where there are reciprocal demands the statute of limitations does not attach, though the parties be not merchants. Cranch, executrix, &c. v. Kirkman and others, Peake, 121. Kenyon, C. J. 1792.

28. But if A. and B. settle the amount to which the latter will be damnified by the insolvency of C., such amount may be set off. Ibid.

29. Secus, if a merely nominal sum is carried to account. Ibid.

30. In an action by a servant for wages, the master cannot set off the 23. Secus, where many years have value of goods lost by the negligence of elapsed between the demands of the re-the plaintiff, although he admitted his spective parties. Ibid. liability to pay. Le Loir v. Bristow, And see these points fully discussed 4 Campb. 134. Ellenborough, C. J. in Catling v. Skoulding, 6 T. R. 189; 1815.

2 Saund. 127. n. 6. See also Topham 31. But if it formed part of the oriv. Braddick, 1 Taunt. 572. ginal agreement that the servant should

pay out of his wages for all his master's
goods lost through his negligence, the
value may be deducted from the wages
under the general issue. Ibid.
And see Y. B. M. 33. H. 6. fo. 43,
pl. 23.

D. (b) How pleaded with other pleas.

38. A defendant pleading the general issue to part of the declaration, and a tender to the residue, is entitled to give notice of set off. Coulson v. Jones, 6

Esp. 50. Ellenborough, C. J. 1806.

32. A creditor who borrows money of his debtor upon an express promise 39. And semble, that where the geto repay the amount, may nevertheless neral issue and also a special plea are set off his original debt. Lechmere, esq-defendant is not precluded from giving pleaded to the whole declaration, the v. Hawkins, gent. 2 Esp. 626. Kenyon, notice of set off, though for the sake of C. J. 1798.

S. P. Taylor v. Okey, 13 Ves. 180. convenience it is usual to plead it. Ibid. And see Eland v. Karr, 1 East, 375; Saunderson v. Gouldsb. 80.

D. (c) Particulars of set off.

Sed vide ante, B. (d) 14; Fair v. 40. Where an order is made on the M'Iver, 16 East, 130, 8; Peele v.defendant to deliver the particulars of Northcote, 7 Taunt. 479. his set off forthwith, the plaintiff cannot, if he has kept the particulars without applying to the court, object at the trial that they were not delivered till ten days subsequent to the order, after the plaintiff had subpoenaed his witnesses, and the cause stood in the paper for trial. Lovelock v. Cleveley, gent. one, &c. Holt. 552. Gibbs, C. J. 1817.

33. Assumpsit for goods sold, &c. plea set off and held, that interest on a bill of exchange accruing after writ sued out cannot be set off, otherwise defendant might gain a verdict by delay. Fletcher v. Lee. Ellenborough, C. J. Sittings after M. T. 1817.

D. PRACTICE RELATIVE TO SET OFF.
D. (a) Form of set off.

34. Bills of exchange and promissory

D. (d) Replication.
(See APPENDIX.)

notes paid by the defendant for the D. (e) Effect of set off upon collateral

plaintiff, need not be specially set off. It is money paid to the plaintiff's use. Ibid.

proceedings.

41. A cross demand pleaded and al35. And under a set off for money lowed as a set off, cannot be the subject had and received, the defendant may of a fresh action. Hennell v. Fairlamb, give in evidence bills of exchange paid 3 Esp. 104. Kenyon, C. J. 1800. And see post, pl. 45, STATUTES, B.(1). 42. But if the set off exceed the

by him to the plaintiff, without proving that such bills have been paid. Hebden

v. Hartsink et alt. 4 Esp. 46. Kenyon, original demand, an action lies for the C. J. 1801.

36. But where the defendant seeks to reclaim an over payment, he will not be

surplus. Ibid.

43. A defendant is not obliged to set off his cross demand, even where he is allowed to surprize the plaintiff by sued for the balance of two separate acgiving it in evidence upon a set off for counts. Brown v. Pigeon, 2 Campb. money had and received. Hampton v, 594. Ellenborough, C. J. 1811. Jarratt, 2 Esp. 560. Eyre, C. J. 1797.

37. Where in covenant for rent and fixtures defendant pleads non est factum, he cannot give notice of set off as upon a general issue the set off must be pleaded. Oldershaw, executor of Holmes v. Thompson, 1 Stark. 311. Ellenborough, C. J. 1816.

And see Middleton v. Hill, 1 M. & S. 240.

44. But where the defendant pleads the general issue with notice of set off, and does not appear at the trial, the plaintiff may either take a verdict for his whole demand, subject to a reduction in case the defendant will enter into a rule to bring no action for the set off; of or for the balance, with a special indorsement on the postea. Laing v. Chat

And the court refused a rule for a new trial, except upon the terms amending and paying costs. Ibid.

ham, 1 Campb. 252. Ellenborough, C. J. 1808.

45. Such indorsement will be a ground for staying proceedings in a cross action. Ibid.

And see ante, pl. 41; post, APPENDIX.

SHERIFF.

(And see ARREST, A. (c); ASSUMPSIT, pl. 50, 51; EXECUTION.)

A. HIS AUTHORITY.

B. DUTY.

(a) Return of process.
(b) Assignment of bail bond.

C. LIABILITY.

(a) To the creditor.
(b) To the debtor.

(c) To their persons.

A. AUTHORITY OF Sheriff.

And see Alford v. Tatnell, 1 Mod. 170. 4. Where a party appoints his own bailiff, the sheriff cannot be ruled to return the writ. Beckford v. Welby, esq. sheriff of Lincoln, 2 Esp. 591. Kenyon, C. J. 1797.

S. P. Hamilton v. Dalziell, 2 Bla. 952; De Moranda v. Dunkin, 4 T. R. 119.

But see Taylor v. Richardson, 8 T. R. 505.

4. If, however, the writ be returned, the sheriff is liable for an escape. Ibid. S. P. admit: Taylor v. Richardson, 8 T. R. 505.

N. An action cannot be maintained on a promise to pay bailiff for extra trouble in making an arrest. Armstrong v. Partridge, 2 Wentw. 538, 40.

And see 2 Roll. Abr. 266, 1. 10; ibid. 1.50; ibid. Execution, A. (d); 17 Vin. Abr. Prescription, H. 1, and K. 2; post, SHIP, K. pl. 128, 145.

B. (b) Assignment of bail-bond.

5. An action for not assigning bailbond is barred by the production of the 1. Defendant, sued by original, can-rule for the allowance of bail. Murray not be arrested between the return day, v. Durand, 1 Esp. 87. Kenyon, C. J. and the quarto die post. Parrot v. Mum- 1794. ford, sheriff of Kent, 2 Esp. 585. Eyre, C. J. Maidstone, 1797.

S. P. Bro. Abr. Proces, 169; Gawen v. Ludlow, Moore, 712; Ellis v. Jackson, 1 Lev. 143; S. C. 1. Sid. 229; S. C. 1 Keb. 718, 805; Loveridge v. Plaistow, 2 H. Bla. 29.

B. DUTY OF SHERIFF. (And see ante, ARREST, A. (c); AsSUMPSIT, pl. 50, 51.)

B. (a) Return of process. (And see ante, EVIDENCE, pl. 8, 9; post, SHIP, pl. 118, 9; 2 Wms. Ŝaund. 47 1, m.)

6. But the plaintiff may move to set aside such rule, if no bail bond was in fact taken. Ibid.

S. P. How v. Lacy, 1 Taunt. 119; Bosanquet v. Simpson, K. B. Tidd. 239. And see Pariente v. Plumbtree, 2 Bos. & Pul. 35; Allingham v. Flower, ibid. 246; Turner v. Carey, 7 East, 607; Jones v. Eamer, 3 Anst. 675.

C. LIABILITY OF SHERIFF.

C. (a) To the creditor.

7. To charge a sheriff with money levied under a fi. fa. it is not sufficient 2. If the defendant publicly follow to show that the levy was made by a his usual avocations, and the sheriff known officer; the writ or warrant must return non est inventus, an action lies be produced. Wilson et alt. assignees of against him. Beckford v. Montague, Warner, v. Norman, sheriff of Kent, 1 esq. sheriff of Wilts, 2 Esp. 475. Ken-Esp. 154. Kenyon, C. J. 1794. yon, C. J. 1796.

8. The writ is not sufficient, the war

3. But the jury are not to give damage rant should be produced. M'Neil v. to the whole extent of the debt, where Perchard et alt. sheriffs of London, 1 the original defendant is solvent. Ibid. Esp. 263. Kenyon, C. J. 1795.

10. S. P. acc. Lloyd v. Harris, Peake, 174. Kenyon, C. J. 1793.

with the sheriff's officer, or made by his authority. Hill v. Leigh and Reay, sheriff of Middlesex, Holt, 216. Ellenborough, C. J. 1816.

And the court refused a rule for a new trial, 7 Taunt. 8.

11. B. C. obtain credit from A. representing himself to be D. C. under which name he is arrested. Though the sheriff would be justified in detaining B. C. he is not bound to do so. Morgan v. 19. The sheriff's return is evidence Brydges and another, sheriffs of Mid-against him only as to those matters dlesex, 2 Stark. 314. Abbott, J. 1818. which the writ requires him to perform. And the court of K. B. set aside a Ibid.

nominal verdict for the plaintiff. Ibid. 20. But it was held to be sufficient to and 1 B. A. 647. produce the office copy of the writ re12. In an action for a false return to turned, with the name of the officer inmesne process, it is good defence to shew dorsed: it being shewn to be the practhat the party rescued himself by force. tice in the sheriff's office to indorse the Fermer v. Phillips, Holt, 537. Gibbs, name of the officer to whom the warrant C. J. 1817. is directed.

S. P. Blatch v. Archer, ibid. Cowp. 63. 21. S. P. contra Jones v. Wood, esq. and another, 3 Campb. 228. Ellenborough, C. J. 1812.

And see Com. Dig. Rescous. D. 4; R. v. Sheriff of Middlesex, 1 B. & A. 190. 13. An assertion ante litem motam by A. of his property in goods, which the sheriff has omitted to seize under an 22. A paper from the sheriff's office, executrix against him, is evidence requiring the officer to give instruction against the sheriff. Tyler v. Duke of for making the return, is, however, a Leeds, 2 Stark. 218. Ellenborough, clear recognition of his authority. Ibid. C. J. 1817.

14. So an admission by A. of his having received notice of dishonour, is evidence against the plaintiff, who has suffered A. to escape. Williams v. Bridges and another, 2 Stark. 42. Abbott, J. 1817.

15. To connect the sheriff with the acts of the bailiff, it was held sufficient to produce the writ with the name of the bailiff indorsed, and shew that it is the custom of the office to indorse the name of the officer who is to execute the process. Tealby v. Gascoigne, 2 Stark. 202. Richards, C. B, York Summer Assizes, 1817.

16. S. P. contra Morgan v. Brydges and another, late sheriff of Middlesex, 2 Stark. 315. Abbott, J. 1818.

And see Hill v. Sheriff of Middlesex,

7 Taunt 1.

17. If the plaintiff calls the bailiff to make out their part of the case, he may be cross-examined by the council on the other side, though he is himself the real defendant. Ibid.

18. An indorsement on the writ, though returned and filed by the sheriff, is not evidence to connect him with the acts of the officer whose name is indorsed, without proof that it is the hand writing of some person connected

23. No action lies against the sheriff for forbearing to levy under a fi. fa. Moreland v. Leigh and another, sheriffs of London, 1 Stark. 388. Ellenborough, Č. J. 1816.

24. Or for not having the money on, &c. after levying. Ibid.

25. After return of levy made, it is a good defence for sheriff to shew that he has paid over to assignees of the original defendant. It is not incumbent upon the sheriff to apply to amend his return. Bridges v. Walford, 1 Stark. 389; in notis. Burrough, J. Essex Summer Assizes, 1816.

And the court of K. B. refused a rule to set aside verdict. Ibid.

26. In an action against sheriff for extortion by his bailiff, under 32 Geo. II. c. 28. it was held that an examined copy of the precept to the sheriff with the return cepi corpus indorsed, whereupon the bailiff's name appeared, does not entitle plaintiff to give parol evidence of the warrant, even after notice to produce it; but some recognition by the sheriff of his bailiff's act must be shewn. Martin v. Bell and another, 1 Stark. 413. Ellenborough, C. J. 1816.

27. But the sheriff's acceptance of bail bond from his bailiff and return of cepi corpus in consequence, is sufficient