worth, in Heyer v. Pruyin,1 said it could not certainly be law; at least, such a principle could not be applied to such a case as the one in question. § 74. As an action of assumpsit cannot be maintained for a demand, after the time limited by the statute has elapsed, so a demand which has been barred by the statute cannot be set off. If it be pleaded in bar to an action, the plaintiff may reply the statute; or, if it be given in evidence under a notice of set-off, it may be objected to at the trial. It seems to be well settled, say the Supreme Court of Pennsylvania, that, if the defendant plead a set-off, the plaintiff may reply the statute, which will be a bar; or, if the defendant, under the plea of the general issue, in England, or in this country, under the plea of payment, give the plaintiff notice of his intention to give it in evidence, the plaintiff, after it is given in evidence, may object the statute of limitations to it.3 It has been held, that where an administra 1 Heyer v. Pruyin, 7 Paige (N. Y.), Ch. R. 470. 22 Bull. N. P. 180; and see Ruggles v. Keeler, 3 Johns. (N. Y.), R. 261; Hicks v. Hicks, 5 East, R. 16. 3 Hinkley v. Walters, 8 Watts (Penn.), R. 260; Shoenberger v. Adams, 4 id. 430; Levering v. Rittenhouse, 4 Whart. (Penn.), R. 130. See also, Watkins v. Harwood, 2 Gill and Johns. (Md.), R. 307; Ruggles v. Keeler, 3 Johns. (N. Y.), R. 263. [Trimyer v. Pollard, 5 Gratt. (Va.), 460; Harwell v. Steele, 17 Ala. 372. In the matter of Drysdale's Appeal, 14 Penn. St. Rep. (2 Harris), 531, heirs who were claiming their ancestors' estate were permitted to set up the statute of limitations in bar of debts due by them to the estate. But see Rose v. Gould, cited in note to § 75, post. But a person who has been absent from the State, and on his return brings a suit, cannot reply the statute to a claim in set-off, which, deducting the time of his absence, would not be barred. Hewlett v. Hewlett, 4 Ed. (N. Y.), Ch. 7. And it is error to exclude an account in set-off, because, on its face, it appears to be barred by the statutes. Camp v. Gullett, 2 Eng. (Ark.), 524; Trimyer v. Pollard, ubi sup. Under statute 21 Jac. 1, c. 16, § 3, where a set-off is filed, the replication should be, that the cause of set-off did not accrue within six years before the commencement of the action, as the statute is not a bar to a set-off unless the six years have expired before the action, in which the setoff is pleaded, is brought. Walker v. Clemens, 9 Eng. L. & Eq. Rep. 332; s. c. 15 Q. B. Rep. 1046; Moore v. Lobbin, 26 Miss. 304. And in Virginia, where, by statute, 1 Rev. Code, Chap. 128, § 87, defendants are allowed to file a set-off any time before trial, whether the set-off accrue before or after the commencement of the action, it has been held, that if the set-off accrue before the commencement of the action, and is at the time of such commencement a subsisting and valid claim, it may be filed any time before trial, though more than five years (the limited time) may have expired between the accruing and the time of filing. But if the set-off accrues after the commencement of the action, it must be filed within five years from the time of its accruing. Trimyer v. Pollard, ubi sup.] tor pleads a set-off, which is barred by the statute, it is no answer to the objection of the statute, that he is allowed, as administrator, nine months to collect the debts; as, during the nine months, he may sue, though he cannot be sued.1 § 75. Where there are cross demands between parties, which accrued nearly at the same time, both of which would be barred by the statute, and the plaintiff has saved the statute by suing out process, but the defendant has not, the defendant may nevertheless set off his demand. Lord Kenyon, in this case, said, that, as the transactions between the plaintiff and the defendant were all of the same date, and as the bills seem to have been given for their mutual accommodation, it would be the highest injustice to allow one to have an operation by law, and not the other; and he held the demand of the defendant to be good, as well as that of the plaintiff, and allowed it to be set off.2 1 Turnbull v. Strokecker, 4 M'Cord (S. C.), R. 210. 2 Ord v. Ruspini, 2 Esp. R. 569. See post, Chap. XIV. on mutual accounts. [So, if a defendant insists that demands against which the statute has run, be allowed, he shall not be permitted to set up the statute against similar demands put in by the plaintiff, when the claims on both sides are matters of book account. Gulick v. Turnpike Co. 2 Green (N. J.), 545. And lapse of time is no bar to a vendor's claim for the value of surplus land conveyed, when he is brought into court by the vendee who seeks to recover back part of the purchase-money on the ground that he has been ejected from a portion of the land conveyed, but still has more acres than he paid for. Richardson v. Bleight, 8 B. Mon. (Ken.), 580. Nor when a testator gives his residuary estate to be divided amongst his children, directing that sums of money appearing by his private ledger to be due from them, shall in the division, be brought into the account, will one of the children against whom there are charges of more than six years' standing, be allowed to set up the statute for the purpose of increasing the amount of his distributive share. Rose v. Gould, 11 Eng. L. & Eq. Rep. 10; s. c. Law J. Rep. (N. s.), Ch. 360. Where an action was brought on a promissory note, and the defendant pleaded a total failure of consideration, and alleged a parol warranty of the property for which the note was given, as a part of his defence, it was held that the plaintiff could not avoid this defence by insisting on the statute of limitations, although more than four years had elapsed from the time of such parol warranty. Munrow v. Hanson, 9 Geo. 398. The last case does not state that an action for a breach of the warranty would have been barred, but that is the obvious inference, and all these cases seem to show that where there is any equitable matter of defence in the nature of set-off, or which might be the subject of a cross action, growing out of the subject-matter for which action is brought, courts will permit it to be set up although a cross action, or an action on the claim in set-off, might be barred by the statute. Thus in an action of debt on a bond given for the price of land, a defence of partial failure of consideration because of a deficiency in quantity, is not barred by the statute. Evans v. Yongue, 8 § 76. The action of debt, when "grounded upon any lending or contract without specialty," is one of the actions ex contractu to recover a sum certain, the bringing of which is limited by the statute to six years next after the cause of action accrued. The forms of a declaration in an action of assumpsit, and in an action of debt on simple contract, are very similar. There are, however, certain words, by which they are distinguished, and which give the one or the other character to the action. In what consists the principal difference, is stated by Mr. Justice M'Lean: "The action of debt is founded upon the contract; the action of assumpsit upon the promise." "In debt," he says, "the consideration of the contract must be stated, as also any inducement necessary to explain the contract or consideration, and it should be stated that the party agreed to pay: stating that he promised to do so, would be bad." 2 § 77. Covenant usually lies only upon contracts under seal; and, therefore, unless the defendant have executed an instrument under seal, this action is not maintainable. It lies on all instruments under seal containing either express or implied covenants. But, wherever a covenant is not under seal, or wherever there has been a contract under seal, and a subsequent and distinct simple contract, founded Rich. (S. C.), 113. So in a suit on a bond against the widow and heirs of the obligor, the defence of payment by board furnished the obligee under an agreement that it should be applied to reduce the bond, was held good, although most of the account for board had accrued more than six years before the action was brought. King, Admr., v. King, 1 Stockt. (N. J.), 44. So in an action to recover the balance of the price of goods sold, unsoundness may be set up in defence, although an action to recover back the amount originally paid, would be barred. Riddle v. Kreinbicht, 12 La. Ann. 297. The Indiana statute of limitations exempts from its operation so much of any matter pleaded as payment or set-off as shall equal the amount of the plaintiff's demand. R. S. 1838, p. 447. Any excess, it seems, would be barred. Livingwood v. Livingwood, 6 Blackf. (Ind.), 268.] 1 [See post, The Masters, Warden, &c. v. Loder, cited in the note to § 79, at the end. An action of debt against a devisee of land, to recover money charged thereon, is not an action grounded on any lending or contract not under seal. Wilson v. Towle, 19 N. H. 244.] 2 Metcalf v. Robinson, 2 M'Lean (Cir. Co.), R. 363. See also, Emery v. Fell, Term R. 28; Brill v. Neele, 3 B. & Ald. R. 208. In which case, the declaration was demurred to, the cause assigned being the misjoinder of debt and assumpsit, on the several counts. See also, Dalton v. Smith, 2 Smith, R. 618, in which the court held a similar declaration to be bad. 8 Com. Dig. Pleader. * Browne on Actions at Law, 353, who cites 6 Bing. 656. upon a new consideration, and the plaintiff is proceeding upon the simple contract, the action must be assumpsit, and not covenant,1 and, consequently, is liable to be barred.2 § 78. All demands upon simple contract are barred by virtue of presumption of payment at the expiration of twenty years, though the statute be not pleaded, to prove the payment of which any evidence is admissible upon the general issue. The court will instruct the jury, that they may presume, after that period, the settlement of an account, and the balance paid. 1 Head v. Wadham, 1 East, R. 619; and per Lord Kenyon, C. J., in The King v. Beeston, 3 D. & East, R. 592; White v. Parkin, 12 East, R. 578. 2 [The statute is no bar to a bill in equity to compel a specific performance of a contract of sale. Washburn v. Washburn, 4 Ired. (N. C.), Eq. 306.] 8 Jackson v. Sackett, 7 Wend. (N. Y.), R. 94; Bass v. Williams, 8 Pick. (Mass.), R. 187. This is so obvious, that it would be superfluous to cite additional authority. It is fully comprehended by the general doctrine of presumptive evidence, arising from a forbearance to sue for twenty years, and which includes specialties. [See post, §§ 93, 159.] 1 CHAPTER X. SPECIALTIES. § 79. IN indebitatus assumpsit, the general rule is, that the plaintiff must show, in his declaration, the certain cause of the debt for which the defendant promised; the reason being that it may appear that the debt is not a contract of record, and not one under seal; the language of the statute being "all actions," &c., "without specialty." In Walker v. Witter,2 it was admitted on the part of the defendant, that indebitatus assumpsit would have lain, and on the part of the plaintiff, that the judgment (one obtained in the Supreme Court of Jamaica), was only prima facie evidence of debt. "That," said Lord Mansfield, "being so, the judgment was not a specialty, but the debt only a simple contract debt." From this, reasons Van Ness, J., in Pease v. Howard, it would seem to follow, that if the judgment had been conclusive evidence of the debt, it would have been a specialty, and that, of course, the statute of limitations could not have been a bar. This mode of viewing the matter seemed to him to derive great weight from the nature and effect of a specialty, which being under seal, imports a consideration, and the want of one cannot be alleged by plea: this, and the solemnity which attends the execution of it, are the only reasons why it ranks higher in the scale of contracts than a writing without seal, or a mere parol agreement. The learned judge, also, drew the distinction between the actions of debt founded upon any contract without specialty, which are actions founded upon contracts in fact, and such actions of debt as are created by construction of law.* 1 Specialties are not within the evils intended. 1 Saund. R. 382; 2 id. 66. 2 Walker v. Witter, 1 Doug. R. 1. 3 Pease v. Howard, 14 Johns. (N. Y.), R. 479. 41 Saund. R. 36, 37, 38; 2 id. 64, 65, &c., and in notes and cases there cited. See also, Cartmill v. Hopkins, 2 Missou. R. 220; Tilghman v. Fisher, 9 Watts (Penn.), R. 441. The statute may be pleaded to indebitatus assumpsit against the sheriff for money levied upon a fieri facias. 1 Mod. R. 246, and Cockram v. Welby, 2 id. 212. One |