battery, trespass, trespass on the case, and petitions for and actions of review; and these actions may be commenced by or against an executor or administrator, or when the deceased was a party to them, may be prosecuted or defended by them.40

(v) An administrator may maintain an action of trespass de bonis asportatis to recover the value of trees unlawfully cut on land of his intestate, and carried away during his lifetime, but cannot recover damages for an injury done to the real estate.11

(w) An action brought to recover against a town for a personal injury, caused by a defect in its highway, survives.12

(x) In an action in the name of husband and wife for injuries sustained by her, the husband cannot be considered a surviving party after the death of the wife; but if made her administrator, he may prosecute in that capacity.

13. Set-off. Demands between plaintiffs and defendants may be set off against each other as follows: The defendant, on the first day of the term, to which the writ is returnable, must file a brief statement of his demand in substance as certain as in a declaration, which, by leave of court, may be amended. The clerk shall enter on it and on the docket the date, and on the docket under the action, notice of its filing, before the new entries are called.44

(y) The defendant may withdraw an account which he may have filed in set-off, though the withdrawal would expose the plaintiff's claim to the statute of limitations.+5

(2) A defendant residing out of the State, upon whom service is made by order of court after entry, may file his claim in set-off on the first day of the term succeeding the service.

(a) An executor or administrator other than an administrator de bonis non, may file an account in set-off, on the first day of the term next after the expiration of the year from the date of his appointment, although the action may have been entered at a previous term.47

(b) An account in set-off cannot be allowed unless the clerk have noted thereon the day on which it was received and filed.48

(c) In a suit by the indorsee of a note against the maker, a note given by the indorser to the defendant cannot be allowed in set-off, if not mentioned in his statement of his set-off demands, although it be wrapped up in the account and indorsed

40 R. S. c. 87 § 8.-41 Hill v. Penney, 17 Me. 409.-42 Hooper v. Gorham, 45 Me. 209.43 Norcross v. Stuart, 50 Me. 87-44 R. S. c. 82, § 48.45 Theobold v. Colby, 35 Me. 179.46 Otis v. Adams, 41 Me. 258.-- Cooley v. Patterson, 49 Me. 570. Pond v. Niles, 31 Me. 131.

by the clerk," Account and note in set-off," &c. ;49 but it seems the account in set-off might be amended so as to include the note, had it contained an item large enough for money had and received.50

14. A demand originally payable to the defendant in his own right, founded on a judgment or contract, express or implied, for the price of real or personal estate sold, for money paid or had and received, for services done, for a liquidated sum, or for one ascertainable by calculation, may be set offi

(d) The right to set off one demand against another, is wholly regulated by statute; and in a suit by an indorsee against the maker of a note when overdue, the latter is not entitled to set off a note given by the promisee to a third person, and by him indorsed to the defendant.52

(e) An account in set-off must be of such a character, that the record will protect the party against an action relating to the same matter; thus, when the defendant took back a horse he had sold the plaintiff on his saying that he would do what was right about it, or leave it to a third person, and the plaintiff had in fact used and damaged the horse while thus owning it, such use and damage is not a matter of set-off in an action between them.53 A defendant cannot claim to set off the plaintiff's demand against a note indorsed to the defendant, unless the plaintiff had agreed with the defendant to pay him such note or receive it on his demand.t

(f) Where the plaintiff becomes nonsuit, no judgment can be rendered against him upon an account in set-off.55`

(g) A note for money given by the plaintiff to the defendant, may be proved under an item for money had and received in an account filed in set-off.55

(h) Right to a set-off, in a suit where an executor or administrator is a party, is the same that would have existed if all the parties interested had lived.57

(i) For goods belonging to the defendant, but tortiously taken and detained by the plaintiff, an account filed in set-off by the defendant to the plaintiff's demand, cannot be sustained.5

(j) A claim in set-off, to be available, must be due and payable at the time of the commencement of the plaintiff's action; 59 but a mere liability as surety or indorser, existing at the time of, but not discharged till after, the commencement of the plaintiff's action, cannot be allowed in set-off.53

49 Hopkins v. Megquire, 35 Me. 78.-50 Gragg v. Frye, 32 Me. 283.-51 R. S. c. 82, § 49.52 Call v. Chapman, 25 Me. 128.-53 Stevens v. Blen, 39 Me. 420.-54 Smith v. Ellis, 29 Me. 422.-55 Sewall v. Tarbox, 30 Me. 27.-56 Gragg v. Frye, 32 Me. 283.57 Adams v. Ware, 33 Me. 223.-58 Hopkins v. Megquire, 35 Me. 78.50 Houghton v. Houghton, 37 Me. 72; Robinson v. Safford, 57 Me. 163.

(k) A charge for rent of real estate, where there is no contract as to the price, cannot be sustained in set-off.60

(1) In an action by one town against another for supplies furnished a pauper, the defendant town cannot file in set-off a demand against the plaintiff town for the support of paupers be longing to the latter.61

(m) If, on account of his own laches in not rescinding a sale, the vendee cannot maintain a count for money paid or had and received for the article delivered, he cannot set off the claim against the vendor's suit growing out of a distinct transaction.62 15. The demand must be due from all the plaintiffs to all the defendants jointly. When there is a dormant partner, claims due from the ostensible one may be set off as if there was no dormant partner.63

(n) In an action against two defendants, they are not entitled to set off a demand in favor of one of them against the plaintiff.64 So a debt due to the defendant from the plaintiff jointly with others cannot be set off.65

16. When a plaintiff has received notice that a demand against him has been assigned to the defendant, and has agreed to pay it to him, or to receive it as payment towards his demand, before his suit was commenced, it may be set off. 66

(0) A debt due from the plaintiff to the firm of which the defendant was a member, cannot be made available by him in set-off, without an express promise to pay."

67

(p) If the creditor draws an order on an attorney with whom he has left a demand for collection, therein requesting him to pay the amount to the order of the creditor; and this order is accepted by the attorney, payable when the money should be collected and come into his hands, and is assigned by the creditor; and the assignee gives notice thereof to the attorney, who says nothing at the time, of any demand of his own, against the assignor; and the money is afterwards collected by the attorney; the assignee may maintain an action in his own name against the attorney to recover the money collected; and the attorney will not be entitled to set off his own demand against the original creditor, existing at the time of the acceptance of the order, and arising out of other transactions.68

(q) Under this section of the statute, to an action in the name of an insolvent bank, prosecuted by direction of the receivers against an indorser of a promissory note, the defendant

60 Hall v. Glidden, 39 Me. 445-61 Augusta v. Chelsea, 47 Me. 367-62 Cutler v. Gilbreth, 53 Me. 176.63 R. S. c. 82, § 50.-64 Banks v. Pike, 15 Me. 268.-65 Adams v. Ware, 33 Me. 228.-66 R. S. c. 82, § 51.-67 Stevens v. Lunt, 19 Me. 70.68 McLellan v. Walker, 26 Me. 114.

may file in set-off such of the bills of the bank as he held when the bank became insolvent and passed into the hands of receivers, but none subsequently received.9

17. When a defendant had notice of the assignment of a demand, he cannot have any demand set off that accrued or was acquired after such notice.70

(r) If the payee of a negotiable note then overdue, having knowledge that it was in the hands of an indorsee, for a valuable consideration agrees to pay it, he cannot set off claims arising thereafterwards.

18. When an action is brought by one person for the use of another, a demand against the latter may be set off. 72

19. When the demand to be set off is a bond or contract with a penalty, the sum equitably due only can be set off. 78

20. Demands against a person belonging to a defendant at the time of the death of such person, may be set off against claims prosecuted by his executor or administrator; and if a balance is found due to defendant, judgment shall be in like form and of like effect as if he had commenced a suit therefor; but if the estate is insolvent, it must be presented to the commissioners or added to the list of claims, as other judgments are."*

21. In actions against executors, administrators, trustees, or others in a representative character, they may set off such demands as those whom they represent might have set off in actions against them; but no demands, due to or from them in their own right, can be set off in such actions.75

(s) Where an attorney had collected moneys for the treasurer of a town in that capacity, it was holden, that he was liable for the amount, in an action for money had and received, at the suit of the town, without a previous demand, and that in such action he could not set off any demand of his own against the treasurer in his private capacity.76

(t) The right which the administrator has by statute to set off any claim he may have in his official capacity upon one of

69 American Bank v. Wall, 56 Me. 167.-70 R. S. c. 82, § 52.-71 Lewis v. Hodgdon, 17 Me. 267-72 R. S. c. 82, § 53.-73 R. S. c. 82, § 54.-74 R. S. c. 82, § 55.75 R. S. c. 82, § 56.-76 Newcastle v. Bellard, 3 Me. 369.

the heirs, against the distributive share of such heir, does not apply to articles of personal property ordered by the judge to be specifically distributed to such heir.77

22. In joint or several actions by the executor or administrator of an estate represented insolvent, against two or more persons having joint or several demands against such estate, the demands may be filed in setoff by either of the defendants, at the first term of the court, or at the first term after such representation of insolvency, if made after the commencement of such actions; and if, on the trial, a balance is found due to the defendants jointly, or to either of them, judgment shall be entered for such balance as the jury find or the court orders, and it shall be treated and disposed of as other judgments against insolvent estates.78

(u) Where a person has deceased, and his estate has been rendered insolvent and commissioners have been appointed, all claims and demands between such estate and a creditor are subject to be set off, and the balance only should be allowed or recovered, although there could have been no set-off if both parties had lived.79

(v) To a note given for land conveyed by a warranty deed, the title to which has partially failed, the maker, in a suit against him by the administrator of the payee, is entitled, under the insolvency laws, to set off the breach of covenant against the note; although his claim may not have been filed before the commissioners of insolvency; and an indorsee, purchasing the note with a knowledge of the facts, takes it subject to the same right of set-off.80

(w) In a suit prosecuted by the administrator of an insolvent estate, a note against the intestate, held by the defendant as indorsee, may be filed and allowed in set-off. The provision in regard to set-offs, in chapter 82 of the R. S., does not apply in such cases.81

23. The trial may proceed, in cases of set-off, on issue joined without a plea of set-off; and if an issue is not otherwise formed, the defendant may, except in actions of assumpsit, plead that he does not owe the sum demanded; and the plaintiff will be entitled to every defense against such set-off, that he might have, by any form of pleading, to an action against him on the same demand.82

77 Rose v. O'Brien, 50 Me. 188.-78 R. S. c. 82, § 57.-79 Medomak Bank v. Curtis, 24 Me. 36.80 Morrison v. Jewell, 34 Me. 146.81 Ellis v. Smith, 38 Me. 114.82 R. S. c. 82, § 58.