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the said offices or franchises. And also, it shall and may be lawful to and for the said courts respectively to give judgment, though the relator, or relators in such information named, shall recover his or their costs of such prosecution; and if judgment shall be given for the defendant, or defendants in such information, he or they for whom such judgment shall be given, shall recover his or their costs, therein expended against such relator or relators, such costs to be levied in manner aforesaid.

"And it shall and may be lawful to and for the said courts respectively to allow to such person, or persons respectively, against whom any information in the nature of a writ of quo warranto, in any case shall be sued or prosecuted, or to the person, or persons who shall sue, or prosecute the same, such convenient time respectively to make a return, plead, reply, rejoin, or demur, as to the said courts respectively shall seem just and reasonable.”

It may be seen that by such a bill passed into a law, a trial by jury is given in the case of a contested fact; and here it has happened that this statute of Anne has either not been extended by usage, and adoption of the courts; or that this being the case, it has not been enacted with the same or similar provisions by the colonial legislature, or by the legislature of the state since the adoption of the constitution under the revolutionary establishment, would seem to me to have been owing to an oversight; or that a case did not occur which brought the advantage or necessity of such an enlargement of the remedy into view, and an application of the jury trial where matters of fact came to be the subject of enquiry.

But the supreme court, who alone can issue writs of mandamus, and receives informations in the nature of a writ de quo warranto; except in the city and county of Philadelphia, where courts of nisi prius are yet holden, have not the power to summon a jury, and try an issue of fact in the other counties, or any of them; and therefore it will be necessary to add a clause enabling the courts at their term to direct issues to be tried in their respective counties where the cause of

complaint arises; and in case a county is interested, to any other county of the district in which that county lies, and which is nearest, or most convenient to that vicinage.

That the supreme court, under the present arrangements, has not the power to summon a jury, and to try an issue was determined in the western district of the supreme court 9th September, 1811. See 4th Binney, 117.

In consequence of this decision, a bill was brought forward in the legislature in the winter of 1812, in the case of the mandamus, and of the information in the nature of the writ de quo warranto; and the object was to supply the provisions of the statute of 9 Anne, c. 20. and adapt them to our situation. But the bill was exceptionable in this, that instead of merely supplying what was deficient in our law on this head, it undertook to comprise and specify all and singular the powers of the court in the case of the mandamus, and the writ de quo warranto, which it had already by the common law; which was unnecessary, and dangerous, because what was not specified, must by implication be lost; and the specifying so far as it went brought into view, what could not be well comprehended by the legislature, as to all the qualifications of the powers; for these must be collected from precedents and decisions. The bill therefore, as was to be expected, fell through and did not pass. There remains therefore a defect of justice on this head as to some objects, and the want of the benefit of a trial by jury in the case of contested facts, so far as respects the counties of the state out of the city and county of Philadelphia. It will be probably moved again in the next legislature, and these observations may assist in the deliberations on this subject.

III Bl. Com. 304.-SET OFF.

IN the digest to which the commentator refers in the margin, the term is compensatio. The etymology of which is compenso, a compound of con and penso, which signifies a

weighing together. Pendo is the root which signifies to weigh. Pensum the supine of the verb as the grammarians say; and pensum a thing weighed. Hence pensum a task or thing weighed out for manufacture. All this refers to the weighing out one commodity against another, in an original barter, or in part retribution of a commodity originally weighed out and received. Hence we see from the derivation of the term the history of the thing itself.

When barter ceased, and gold and silver became a medium of commerce, it passed by weight, and not by the nominal and arbitrary value of a piece of coin; and which could only be by the consent of a nation amongst the people of that nation, or by the courtesy of other nations, to receive it at that value. Weighing therefore, in the nature of the case, must take place and exist still, where gold and silver, or other scarce metal passes by weight. If a man owes twenty pounds, and can weigh out only ten, he can compensate, or set off only ten.

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It may be worth while to extract here for the sake of the classical student, the various dicta of the codes which are here digested, or collected in the pandects.

Definitio. Compensatio est debiti et crediti, inter se, con

tributio.

Effectus. Unusquisque creditorem suum, eundemque debitorem, petentem, summovet, si paratus est compensare. Utilitas. Ideo compensatio necessaria est, quia interest, nostra potius non solvere, quam solutum repetere.

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Quod natura debetur venit in compensationem.

This will suffice out of that chapter which contains a summary of the whole law upon this subject.

Stoppage or set off, is the term in the common law of England. For, at the common law, the demand of a debt might be stopped by something set off, and going to the whole of the demand, or to a part. The question was, what could be set off to stop the demand in law if a suit were brought. Any thing going directly in discharge of the demand, and made and accepted with a view to that discharge, there could be no doubt, might be set off. Or any thing done in pursuance of a

fulfilment of a contract, or payment of a debt, on the principle of natural justice, could not but be set off. But what was not so immediately connected with the contract, as necessarily to be in discharge of it, might be considered as collateral to it, and the necessity of a set off did not immediately follow. The common law was narrow upon this point. See Montagu on the law of set off, and the authorities there cited, page 1. An extent was given to the law of set off in chancery, or the equity courts in England; but still not to the extent of giving a remedy, to the extent which natural justice, or public convenience would require. Hence the statutes of set off. 2 Geo. II. c. 22. Sec. 13: and 8 Geo. II. c. 24, Sec. 4 and 5.

That of 2 Geo. II. is in these words; that where there are mutual debts between the plaintiff and defendant, or if either party sue, or be sued, as executor or administrator, where there are mutual debts between the testator or intestate, and either party, one debt may be set against the other.

That of 8 Geo. II. c. 24. extends this provision which had been limited by the former statute to continue for the term of five years, and it is in these words; "And whereas the provision for setting mutual debts one against the other is highly just and reasonable at all times, the said clause in the said first recited act for setting mutual debts one against the other, shall be and remain in full force forever."

And by sec. 5. it is enacted, that "by virtue of the said clause in the said recited act contained, hereby made perpetual, mutual debts may be set against each other, either by being pleaded in bar or given in evidence under the general issue, in the manner therein mentioned, notwithstanding that such debts are deemed in law to be of a different nature, unless in cases where either of the said debts shall accrue by reason of a penalty contained in any bond or specialty; and in all cases where either the debt, for which the action has been or shall be brought; or the debt intended to be set against the same, hath accrued or shall accrue by reason of any such penalty, the debt intended to be set off, shall be pleaded in bar, in which shall be shewn how much is truly and justly due on either side; and in case the plaintiff shall recover in any

such action or suit, the judgment shall be entered for no more than shall appear to be truly and justly due to the plaintiff after one debt being set against the other."

This act of 8 Geo. II. not only gave perpetuity to the former; but also a greater extent than, in the construction of some judges, had been put upon it. This construction had been that the provision of a mutual set off did not apply to debts of a different nature. By debts of a different nature is meant, of a different class of actions referring to the technical boundaries which had been fixed between actions of debt, actions of trespass on the case, &c. But even under these words, debts of a different nature, the construction was restrained to what, in its nature, was a debt or demand certain arising on contract. In the case of a specialty or writing under seal, a set off might be made, but it must be pleaded, it could not be given in evidence with notice. And in the case of a penalty pleaded as a set off, it could not be allowed; and the debt really due was narrowed to what could be shewn by payments; for under the plea unliquidated damages could not be set off; that is, the jury at the bar, would not be suffered to hear all circumstances, and liquidate the damages a defendant had sustained by reason of non-compliance with a contract with the plaintiff.

It is also observable, under these statutes, that no provision is made, that if the defendant under his plea, or notice of set off, could shew that he had overpaid, or that his set off was such as brought the balance in his favour, he could not have judgment for it, but must bring his action for the balance; in which case if even an overhauling of the whole controversy could be avoided, yet, a counter suit must follow, and new costs be incurred.

Before these statutes of 2 Geo. II. and 8 Geo. II. which passed in the year 1729, we had an act of assembly of Pennsylvania of 1705. And it has been with a view to refer the student to this act as going farther than the English statutes, that I have made this note. For, though, our act was before theirs, yet they did not chuse to follow it to the whole extent, if they had at all heard of it, which is possible; but not A A

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