pared in the name of both, but is executed by one only, with condition for the due performance of the work, or the payment of the weekly sum, and the work is not finished in the time; such weekly payments are not by way of penalty, but in the nature of weekly damages, and may be set-off by the obligee in an action brought against him by the obligor who executed. Fletcher v. Dyche, 2 Term Rep. 32. In debt upon an annuity-bond, the defendant, after Money lent oyer, pleaded a set-off for 5001. for money lent exceeding ed to debt on may be pleadthe yearly sum incurred for the annuity, and offered to annuity-bond. set off as much, &c. and on demurrer, the plea was holden good. Collins v. Collins, 1 Burr. 820. If an action is brought by or against a trustee, a set-off Trustee, may be made of money due to or from the cestui que trust. 1 Term Rep. 622. Winch v. Keeley. 7 T. R. 359. A debt barred by statute of limitations cannot be set- A debt barred off; if pleaded, the plaintiff may reply the statute; if it is by statute of given in evidence, plaintiff may object to it. Str. 1271. Remington v. Stephens. Bull. 176. A defendant may, after pleading the general issue, move to withdraw it, and plead a-new with a set-off. Str. 1267. Blackburn v. Matthias, 1 Term Rep. 693. limitations, May after and plead A broker with a commission del credere, cannot prove anew. under a notice of set-off, a loss upon a policy happening A broker with before a bankruptcy, in an action by the assignees of the commission bankrupt for premiums upon policies underwritten by del credere, him, and for which he had debited the broker; but such cannot prove a loss under a loss may be set-off under the general issue. Grove v. notice of setDubois, I Term Rep. 112. Vide 28th sect. of 5 Geo. 2. off. c. 30. See 285. Ibid. A judgment can be pleaded by way of set-off though Error dependa writ of error be pending thereon. Evans v. Prosser, ing. 3 Term Rep. 187. Reynolds v. Beerling, ib. n. a. This court permitted three defendants to set-off a judg- Three defenment, recovered by them against the plaintiff, against a dants to setjudgment obtained by the plaintiff against them jointly recovered by off a judgment (subject to the attorney's lien) though the plaintiff had them against also a separate demand on one of the defendants. Glaister plaintiff. v. Hewer, 8 Term Rep. 69. If a factor who sells under a del credere commission, If factor unde sell goods as his own, and the buyer knows nothing of the a X del credere commission sell goods as his own. Prisoner dis principal, the buyer may set-off any demand he may have on the factor against the demand for the goods made by the principal. George v. Clegett, 7 Term Rep. 359. Where a prisoner in execution is discharged by the concharged, fresh sent of his creditor, upon giving a fresh security to satisfy security. the judgment, and that security is afterwards defeated on account of a mere informality, the judgment is satisfied, and cannot be set-off against any demand of the prisoner. 1 Term Rep. 557. Jaques v. Withy. Uncertain damages can not be set-off. Costs in case plaintiff does 40s. where the original demand is re not recover duced under Bet-off. To an action of covenant for rent, the defendant cannot set-off any uncertain damages that he may be entitled to recover against the landlord, or any of the covenants in the lease. Weigall v. Waters, 6 Term Rep. 488. Where the plaintiff's original demand was 43s. and a set-off of 4s. reducing it to 39s. for which the plaintiff had a verdict: court held, on a motion for a suggestion on the court of conscience act, that there is a difference between the case of mutual debts subsisting where the plaintiff's demand is more than 40s. the defendant's dethat sum by mand reducing it to a less sum; and the case where the plaintiff's original demand was more than 40s. and the defendant, before the commencement of the action, hath by payment in part, reduced it to less than 40s. In the first case, the plaintiff must sue here, or lose part of his demand, because he does not know whether the defendant can or will set-off any demand against him; but in the latter case, the plaintiff well knowing that he hath been paid such part of his original demand as reduces it to less than 40s. hath no right to come to this court and demand more than 40s. but must go to the county court. In the first case mutual debts are at the commencement of the action; in the latter case not: for payment of part by the defendant to the plaintiff 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 is necessary in such case, but payment of part is proved under a non assumpsit. Rule discharged. Gross v. Fisher, 3 Wils. 48. 1 Str. 1191. 1 Wils. 19. But if verdict be for less than 40s. without a set-off, if he live within the jurisdiction of the court of conscience with the plaintiff, he may pray a suggestion and have costs. 2 Wils. 68. Doug. 448. not set-off Where a broker effected policies of assurance in the A broker canname of his principal upon adel credere commission; losses which held that he could not set off losses which happened on have happenthose policies in an action by the under-writer to recover ed on policies, premiums; although the losses claimed were total, and though the the broker had accounted for them with his principal. losses were Cumming v. Forester and others, Maule and Selw. 494. total, and the See also Koster and others, Assignees of Swan, (bank- counted for rupt) v. Eason, 2 Maule and Selw. 112. A plea of set-off, for money due on a recognizance, and also for money due upon promises pleaded to an action, of debt on bond, as if to an action of assumpsit, was holden to be a nullity, and plaintiff might sign judgment. Penfold v. Hawkins, 2 Maule and Selw. 606. Blewitt v. Marsden, 10 East, 237. broker had ac them. When a plea of set-off may be treated as a nullity. In affidavit for goods sold and delivered, defendant Defendant may set-off money due upon plaintiff's acceptance, of may set-off which defendant has become holder, since the sale, plaintiff's acceptance. and before the delivery of the goods, though he has agreed to give plaintiff ready money for them. Cornforth v. Rivett, 2 Maule and Selw. 510. cannot set-off a bond debt of The defendant cannot plead by way of set-off a bond Defendant debt of the plaintiff assigned to the defendant by another, to whom, and for whose use it was originally given. Blake v. Tinkler, 16 East, 36. OF NOTICES TO ASSIGNEES, &c. Of Notices to Assignees of the Defendant's Intention to dispute the petitioning Creditor's Debt, Trading, or Act of Bankruptcy. Besides the notice of set-off, it is necessary in actions brought by or against the assignees of a bankrupt, for the other party to give a notice in writing, of his intention to dispute the petitioning debt, trading, or act of bankruptcy, it being enacted by the stat. 49 Geo. 3, c. 121. s. 10. that "in any action brought, by or against 66 any assignee of a bankrupt, the commission of "bankruptcy, and the proceedings of the commissioners "under the same, shall be evidence to be received of "the petitioning creditor's debt, and of the trading and "bankruptcy of such bankrupt, unless the other party plaintiff to which he is only assignee. Notice must be given by plaintiff before issue joined. The notice is not to be con sidered as part "in such action, shall, if defendant, at or before the "time of his pleading to such action, and if plaintiff, "before issue joined in such action, give notice to such "assignee that he intends to dispute such matters, or any of them; and where such notice shall have been given, if such assignee shall at the trial, prove the "matter so disputed, or the other party shall at the "trial, prove the matter so disputed, or other party "shall at the trial, admit the same; the judge before "whom the cause shall be tried, shall if he see fit grant a certificate, that such proof, or admission, was made at such trial, and such assignee shall be "entitled to the costs to be taxed by the proper offi"cer, occasioned by such notice; and such costs, "in case the assignee shall obtain a verdict, shall be set-off, or deducted from the costs which such other party would otherwise be entitled to receive from "such assignee." 66 66 66 A notice, by the plaintiff of his intention to dispute the act of bankruptcy, served at the time the issue is delivered, with notice of trial at the back of it, is not sufficient it must be delivered before issue joined. 4 Campb. 207. The notice given by a defendant, under the above act, is not to be considered as part of his regular eviof the regular dence in the cause, but may be proved at the beginning of the trial, and immediately puts the plaintiff upon strict proof of the trading, petitioning creditor's debt, or act of bankruptcy. 2 Campb. 324. evidence. If no notice be given. If defendant issue without not after If no notice be given, that the validity of the commission is meant to be disputed, the petitioning credi tor's debt is held to be proved by the deposition of the petitioning creditor himself before the commissioners. 2 Campb. 493. A defendant in an action, by the assignees of a bankpleads general rupt, pleads the general issue, without giving notice of notice, he can- his intention to dispute the bankruptcy, but before the time for pleading expires, delivers the general issue again with notice, such notice is insufficient. The defendant in such case ought to move for leave to withdraw his plea. Poole, assignee of Lukin, a bankrupt v. Bell, and another Sheriff's of London, 1 Stark. N. P. Rep. 328. wards deliver another plea with notice, If no notice In an action of trespass, brought by a bankrupt against his assignees, to try the validity of the com- is given, it is mission, although they are not named assignees, on prima facie the record, if the plaintiff do not give any notice evidence of under the above act, the commission, and proceedings trading. under it are, prima facie, evidence to prove the trading, petitioning creditor's debt and act of bankruptcy. 3 Campb. 251. 4 Campb. 207. though the plaintiff may, notwithstanding, call witnesses to contradict the depositions respecting them. 3 Campb. 424. dant has not * Though the defendant has not given notice that he Though defenintends to dispute the proceedings under the commission, given notice he may nevertheless give evidence to disprove the act of of disputting, bankruptcy. Mills, assignee of E. Chambers and others &c. yet he bankrupts, v. Bennett, 2 Maule and Selw. 556. In the King's Bench. A. B. and C. D. suing as assignees, &c. of E. E. H. Plaintiffs, Defendants. may give evidence to dis prove the act of bankruptcy. Take notice, that the defendant intends to dispute Form of nothe petitioning creditor's debt, trading and bankruptcy tice of defenof the above-named E. F. on the trial of this cause. dant's intenDated, &c. Yours, L. M. Defendant's attorney, &c. To A. B. and C. D. the above named plaintiffs, and to Mr. J. K. their attorney, &c. OF PAYING MONEY INTO COURT. tion of disputing petitioning creditor's debt, &c. THIS practice was introduced for the sake of giving a Why introparty (who never had it in his power to make a ten- duced. der, or neglected to make one) an opportunity of satisfying the debt for which the action had been commenced, and likewise to deliver him from the necessity of proving the tender, if he had made one. 1 Ld. Ray. 255. And it is allowed in cases where an action is brought When allowupon contract, for the recovery of a debt, which is either ed certain or capable of being ascertained by mere computation, without leaving any sort of discretion to be exercised by the jury, it is right and reasonable to admit the defendant to pay the money into court, and have so much of the plaintiff's demand upon him struck out of the declaration; and that if the plaintiff will not accept |