Even in those cases where a coveuant not to sue shall be construed to enure as a release to avoid circuity of action, the covenant not to sue must be a perpetual covenant, that is, a covenant not to sue at all; for a mere covenant not to sue within a particular timed will not have this effect. In such case the party cannot plead the covenant in bar, but is put to his action of covenant. But if the obligee covenant not to sue the obligor before such a day, and if he do, that the obligor shall plead this as an acquittance, and that the obligation shall be void, this is a suspension of the obligation, and so by consequence a release. A bond was conditioned', that the obligor should indemnify the obligee from all sums the latter should pay on the account of the obligor; before the execution of the bond, the following memorandum was endorsed on it, viz. "that the obligee hath given an undertaking not to sue upon the bond until after the obligor's death;" it was holden, that the memorandum was to be taken as part of the condition, and consequently that the boud was payable only by the representative of the obligor after his death. 8. Set-off. At the common law, if the plaintiff was indebted to the defendant in as much or even more than the defendant owed to him, yet the defendant had not any method of setting off such debt in the action brought by the plaintiff for the recovery of his debt. To obviate this inconvenience, and to prevent circuity of action, or a bill in equity, it was enacted, by stat. 2 G. 2, c, 22. s. 13. (made perpetual by the 8 Geo. 2. c. 24. d Deux v. Jefferyes, Cro. Eliz. 352. 1 Rol. Abr. 939. S. C. Ayliff v. Scromshire, Show. 46. Salk. 573, S. C. e 1 Rol. Abr. 939. L. pl. 2. where the distinction between a covenant not to sue a sole obligor, and one of several obligors is taken; in the latter report it is said, "A. is bound to B., and B. covenants never to put the bond in suit against A.; if afterwards B. will sue A. on the bond, he may plead the covenant by way of release. But if A. and B. be jointly and severally bound to C. in a sum certain, and C. covenant with A. not to sue him, that shall not be a release but a covenant only; because he covenants only not to sue A., but does not covenant not to sue B.; for the covenant is not a release in its nature, but only by construction to avoid circuity of action; for where he covenants not to sue one, he still has a remedy; and then it shall be construed as a covenant and no more.” s. 4.) that "where there are mutual debts between the plain"tiff and defendant; or if either party sue or be sued as exe"cutor or administrator, where there are mutual debts between the testator or intestate, and either party; one debt may be set against the other, and such matter may be given in evidence upon the general issue, or pleaded in "bar, as the nature of the case shall require: so as at the "time of pleading the general issue, where any such debt "of the plaintiff, his testator, or intestate, is intended to be "insisted on in evidence, notice shall be given of the par"ticular sum or debt so intended to be insisted on, and upon what account it became due, or otherwise such "matter shall not be allowed in evidence on such general issue." 46 Upon the construction of this statute several questions arose; First, Whether debt on simple contract could be set off in common cases against a specialty debt (39)? 2ndly, If in common cases, whether they could be so set off, where an executor or administrator is plaintiff (40)? and 3dly, Whe (39) This question first arose in Stephens v. Lofting, M. 6 G. 2. C. B. 8 Vin. 562. pl. 31. and cited by Willes C. J. in Hutchinson v. Sturges, Willes, 262. when the court were of opinion that a simple contract debt could not be pleaded by way of set-off to a bond. But on error in B. R. Yorke C. J. expressed a strong opinion to the contrary; Probyn J. concurred with the C. J.; Price J. doubted, and Lee J. did not give any opinion; the decision, however, of another point (see post, p. 521. n.) rendered the determination of this question unnecessary at that time. The same question was again agitated in Brown v. Holyoak, E. 7 G. 2. C. B. case was this: In debt for rent† upon a lease by indenture, the defendant pleaded that a greater sum was due from the plaintiff to the defendant, upon a promissory note; after argument, judgment was given for the plaintiff, on the ground that his demand was equal to a specialty, and that a simple contract debt could not be set off, against a specialty debt. On error in B. R. the judgment of the court of common pleas was reversed by Lord Hardwicke C. J. and the court, the day after the stat. 8 G. 2. c. 24. was passed. (40) In Kemys v. Betson, C. B. T. 6 Geo. 2. 8 Vin. 561. pl. 30. and cited by Willes C. J. in Hutchinson v. Sturges, Willes, 262. it was holden in the case of an executor, that simple contract debts could not be set off against debts on specialties; for the debts must be of an equal nature: otherwise such a construction might occasion a devastavit. And in Joy v. Roberts, in the Exchequer, M. 6 Geo. 2. (cited by Willes C. J. in Hutchinson v. Sturges, Willes, 262.) there was the same resolution. * Barnes, 290. By an administrator, 8 Vin. 568. ther, in the case of a bond, the penalty was to be considered as the debt (41)? To remove these difficulties, it was enacted and declared by stat. 8 Geo. 2. c. 24. s. 5. that," by vir"tue of the preceding clause, mutual debts might be set "against each other, either by being pleaded in bar or given "in evidence on the general issue, in the manner therein "mentioned, notwithstanding such debts were deemed in "law to be of a different nature; unless in cases where either of the said debts should accrue by reason of a penalty "contained in any bond or specialty; and in all cases, where "either the debt for which the action is brought, or the "debt intended to be set against the same, hath accrued, by "reason of any such penalty, the debt intended to be set off "shall be pleaded in bar; in which plea shall be shewn "how much is due on either side (42); and in case the plaintiff shall recover in any such action, judgment shall "be entered for no more than shall appear to be due to the plaintiff, after one debt being set against the other as "aforesaid." In debt upon a bail bond, brought by the officer of the palace courts, to whom the defendant had given the bond conditioned for the appearance of A. B. to answer C. D. in a plea of trespass on the case; the defendant pleaded, by way of set-off, a greater sum due to him from the plaintiff, g Hutchinson v. Sturgess, Willes, 261. (41) In debt on a bond for 767. 10s. conditioned for the payment of £38, the defendant pleaded a debt by simple contract of £70*. On demurrer the question was, whether the penalty were the legal debt, so that the money due could not be pleaded against what was really due upon the bond. Judgment for the plaintiff in C. B. On error in B. R. Yorke C. J. said, that the penalty of the bond was the legal debt; that one part of the stat. 2 Geo. 2. c. 22. s. 13. was to be compared with the other; and, therefore, if the defendant (as he might have done) had pleaded the general issue, and given in evidence part of the plaintiff's demand, and craved to have an allowance of so much; this would not have aided him, for the jury must find the whole, or else that it was not the parties' deed, and they could not sever the debt; so, in like manner, a lesser sum than was demanded by the plaintiff, that is, than the penalty, could not be pleaded. Judgment of C. B. affirmed. (42) Hence the defendant in his plea must aver what is really due; and this averment has been holden to be traversablet, although laid under a videlicet. * Stephens v. Lofting, B. R. M. 7 G. 2. 2 Barnard. 338. + Symmons v. Knox, 3 T. R. 65. Grimwood v. Barrett, ô T. R. 460. by simple contract. On demurrer, the court gave judgment for the plaintiff'; Willes C. J. (who delivered the opinion of the court) observing, that as this was not a bond conditioned for the payment of money, the case was not within the stat. 8 Geo. 2.; and it was not within the stat. 2 G. 2., because the plaintiff did not sue in his own right but in the nature of a trustee for C. D.; that it might as well be said, that when a person sued as executor, the defendant might set off a debt from the plaintiff to the defendant, in his own right, as that the defendant could set off in the present case. He added, however, that if this had been a bond to the sheriff, assigned over to the party according to the statute, the court would have thought otherwise; and that the penalty must have been considered as the debt, this not being a case within the stat. 8 Geo. 2. To debt on bond conditioned for the payment of an annuity to plaintiff, defendant pleaded, that a certain sum only was due to the plaintiff on account of the annuity, and that the plaintiff was indebted to the defendant in a larger sum of money, for money lent, &c., which he claimed to set off: on demurrer, it was adjudged, that this was a case within the stat. 8 Geo. 2. c. 24. s. 5., and that the defendant was entitled to set off his debt. The following rules must be attended to in pleading a set-off:Uncertain damages, or an unliquidated demand, cannot be made the subject of a set-off (43). But if two persons agree to perform certain work in a limited time, or to pay a stipulated sum weekly, for such time afterwards as it should remain unfinished, and a bond is prepared 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 stipulated sum weekly, such weekly payments are in the nature of liquidated damages, and not by way of penalty, and may be set off by the obligee in an action brought against him by the obligor who executed. 2dly, A debt barred by the statute of limitations cannot be set off; for the remedy, by way of set-off, was intended to supersede h Collins v. Collins, 2 Burr. 820. k Fletcher v. Dyche, 2 T. R. 32. 1 Per Willes C. J. in Hutchinson v. Sturges, Willes, 262. (43) Debts to be set off must be such as an indebitatus assumpsit will lie for." Per Ashhurst J. in Howlet v. Strickland, Cowp. 56. the necessity of a cross action; and a debt barred by the statute of limitations cannot be recovered by action. If such debt be pleaded, the plaintiff ought to reply the statute"(44). 3dly, The debts sued for, and intended to be set off, must be mutual, and due in the same right (45). A debt due to a person in right of his wife", cannot be set off in an action against him on his own bond. IV. Debt on Bail-bond-Stat. 23 H. 6. c. 10.Assignment of Bail-bond under Stat. 4 Ann, c. 16. Declaration by Assignee-Of the Pleadings, comperuit ad Diem-Nul tiel Record, AT common law, the sheriff was not obliged to take bail from a defendant arrested upon mesne process, unless he sued out a writ of mainprize; but, by stat. 23 H. 6. c. 10. it was enacted, "that sheriffs, under-sheriffs, bailiffs of "franchises, and other bailiffs (46), should let out of prison "all persons by them arrested or being in their custody, by "force of any writ, bill, or warrant, in any action per"sonal (47), or by cause of indictment of trespass (48), m Remington v. Stevens, Str. 1271. n Bull. N. P. 179. cites Paynter v. Walker, C. B. E. 4 Geo. 3. evidence, on a notice of set-off, Bull. N. P. 180. (44) If such debt be given in it may be objected to at the trial. (45) See cases affording an illustration of this rule, under plea of set-off, tit. Assumpsit, ante, p. 139. (46) "This statute does not authorize sheriffs' bailiffs to take obligations for the appearance of persons arrested: from the express mention of bailiffs of franchises, it appears that those officers only are meant, who have the return of process. When, therefore, the process is directed to the sheriff, the indemnity must be to him." Per Buller J. in Rogers v. Reeves, 1 T. R. 422. The marshal of the King's Bench is an officer within this statute, Bracebridge v. Vaughan, Cro. Eliz. 66.; but the serjeant at arms of the House of Commons is not. Norfolke v. Elliot, 1 Lev. 209. (47) Upon an attachment of privilege, attachment upon a prohibition, attachment in process upon a penal statute, the sheriff |