and fuch Matter may be given in Evidence on the general Iffue, or pleaded in Bar, as the Nature of the Cafe fhall require; fo as at the Time of his pleading the general Iffue, where any fuch Debt is intended to be infifted upon in Evidence, Notice be given of the particular Sum or Debt fo intended to be infifted on, and upon what Account it became due; and by 8 G. 2. c. 24. mutual Debts may be fet against each other, notwithstanding fuch Debts are of a different Nature, unless in Cafes, where either of the faid Debts fhall accrue by Reason of a Penalty contained in any Bond or Specialty; and in all fuch Cafes the Debt intended to be fet off fhall be pleaded in Bar, in which Plea fhall be fhewn how much is truly and juftly due on either Side, and in cafe the Plaintiff shall recover, Judgment shall be entered for no more than shall appear to be due after one Debt set against the other.

A Notice was as follows, Take Notice that you are in- Fowler v. debted to me for the Ufe and Occupation of a House for a Jones, Sittings long Time held and enjoyed, and now lately elapsed. The at Westminster. Debt intended to have been fet off was for Rent referved Hil. 8 Geo. 2. on a Leafe by Indenture, which not being mentioned in the Notice could not be given in Evidence; for if this had been fhewn, the Plaintiff might probably have proved an Eviction, or fome other Matter to avoid the Demand. Thefe Notices fhould be almost as certain as Declarations.

A Debt due to a Man in Right of his Wife cannot be fet off in an Action against him on his own Bond.

Paynter v.

Walker, C. B. Where the Plea is of an equal Sum, there the Action Eaft. 4 G. 3. is barred, but if it be for a lefs Sum than for what the Cook and Dixon, B. R. 1735. Action is brought, the Defendant muft pray to have it fet off.

The Day after the laft Act paffed, Lord Hardwicke, Brown and Ch. Juft. delivered the Opinion of the Court of K. B. Holyoak, 8 G. that a Debt by fimple Contract might by the former Act 2.

have been fet off against a Specialty Debt.

If there be mutual Debt fubfifting between the Tef- Ibid. tator and J. S. the Executor will be indemnified in fetting off J. S.'s Debt against his Teftator's without bringing an Action against him.

In Debt upon Bond, the Defendant pleaded a greater Hutchinfon v. Debt in Bar, upon which the Plaintiff prayed to have Sturges, Tr. the Condition of his Bond inrolled, which was to appear B 14. Geo. 2. C. at Westminster, and demurred; and it was holden that this Bond was not within the 8 G. 2. for that Statute relates only to Bonds conditioned to pay Moncy, and not to Bail-Bonds; and it was not within the Statute 2 G. 2. because

N

Lofting and

Stevens, Mic. 1733.

Collins and Collins, Tr. 32 Geo. 2.

Nedriff and Hogan, E. 33 G.

2.

Shipman and
Thompson,

E. 11 G. 2. C.
B.

Baskervil and
Brown, Tr. I
G. 3. K. B.
Sittings.

because the Plaintiff did not bring the Action in his own Right, but as Truftee for another, (for he was an Officer in the Palace Court;) but if it had been given to the Sheriff, and by him affigned to the Party, it might be otherwife, and then the Penalty would have been confidered as the Debt, because it would have depended upon 2 G. 2.

In Debt on Bond, the Defendant craved Oyer of the Condition, which was to pay the Plaintiff 10l. a Year during Life, and then pleaded, that the Plaintiff was indebted to him in the Sum of 500l. for Money lent, &c. exceeding the yearly Sums that had incurred for the Annuity, and offered to fet off as much, &c. and on Demurrer the Plea was holden good.

To Affumpfit for 40l. lent. &c. the Defendant pleaded Articles of Agreement with mutual Covenants in a Penalty of 200l. for Performance, and fhewed a Breach whereby the Penalty became due, and offered to fet off; on Demurrer the Court held this Plea not within the Statutes, for there may not be 51. justly due to the Defendant on the Balance.

A Debt barred by the Statute of Limitations cannot be fet off. If it be pleaded in Bar to the Action, the Plaintiff may reply the Statute of Limitations. If it be given in Evidence on a Notice of Set-off, it may be objected to at the Trial.

A. having been appointed by B. his Attorney to receive his Rents, did after his Death receive Rent Arrear in B.'s Life-time; B.'s Executrix brought an Action for the Money in her own. Name; the Defendant gave Notice to fet off a Debt due to him from the Teftator, which was not allowed at the Trial, because the Testator had never any Caufe of Action against the Defendant, for the Money was not received till after his Death.

To an Action on a promiffory Note of 30l. the Plaintiff took a Verdict for the whole Sum, the Defendant had at the fame Sittings an Action against the Plaintiff for 11. to which there was a Notice to fet off the Note of Hand, and the Court held that notwithstanding the Verdict the Note of Hand might be set off, for if at the Time of the Action brought there are mutual Demands, they by the Statute may be fet off; and Justice may be done by entering a Remittitur on the firft Record as to fo much.

March, AffigThe Affignee of a Bankrupt brought an Action for nee of May, v. Work and Labour, the Defendant gave Notice of a Setoff, and at the Trial produced a negotiable Note given

by

rs. Tr

by the Bankrupt antecedent to his Bankruptcy to Scott, and K. B. 1 P. W. Scott's Hand was proved to the Indorsement to the De- 782. S. P. fendant, but no Proof was given when it was indorfed, upon which the Plaintiff called two Witneffes, who gave ftrong Evidence to fhew it was after the Bankruptcy; however the Defendant had a Verdict; but a new Trial was granted, because fuch Indorsee ought not to be in a better Condition than the Drawee, who would only have come in as a Creditor under the Commiffion.

Mic. 20 G. 2.

K. B.

To an Action of Indebitatus Affumpfit by the Affignees Ryal & al' Af. of a Bankrupt, for Goods fold by them to the Defendant, fignees of Harhe pleaded that Harvest before his Bankruptcy, (viz. 21 veft, v. Larkin Apr. 1740,) was indebted to the Defendant by Bond in 100l. conditioned to pay 50l. which exceeded the 13. mentioned in the Declaration; and upon Demurrer it was holden, that the Statute for fetting off mutual Debts does not extend to Affignees of Bankrupts, and that these can never be confidered as mutual Debts, for where there are mutual Debts, there must be mutual Remedies, which is not the Cafe here.

But by the 5 Geo. 2. c. 30. S. 28. Where it shall appear to the Commiffioners that there has been mutual Credit given by the Bankrupt, and any other Perfon, or mutual Debts between the Bankrupt and any other Perfon, at any Time before fuch Perfon became Bankrupt, the Commiffioners, or the Affignees of the Bankrupt's Ef tate, shall state the Account between them, and one Debt may be fet against another; and what fhall appear to be due on the Balance, and no more, fhall be claimed, or paid, on either Side.

In Replevin, the Avowant juftified under a Distress Abfolom and for Rent; the Plaintiff at Nifi Prius infifted, that there Knight, E. 16 was more due to him than the Rent amounted to, and G. 2. C. B. Denison J. refused the Evidence, and upon Motion for a new Trial, the Court held that 2 G. 2. did not extend to the Cafe of a Diftress, for that is not an Action, but a Remedy without Suit; they likewife declared, that it did not extend to Detinue, and the like Actions of Wrong.

In Covenant upon an Indenture for Non-payment of Gower and Rent, the Defendant pleaded Non eft factum, and gave a Ux v. Hunt. Notice of Set-off, Mr. J. Denton at the Affizes was of 1 B. 204. Opinion he could not upon this Iffue; but upon a Motion for a new Trial, the Court held the Evidence ought

to have been received, for the general Iffue mentioned

6 Co. 44.

2 Leon. 110.

Str. 1042.

Cr. El. 920.
Co. L. 172. a.

Harris and
Shipway, at
Monmouth,

1744, per Aband Lady Clifton, C. B. Tr.

ney, J. Ewer

1735, S. P.

Andr. 190.

3 Danv. 507.

6 Co. 44.

in the Act must be understood to be any general Issue, and accordingly ordered a new Trial.

If a Man accept a Bond for a Legacy, it is an Extinguishment of the Legacy; fo if a Man accept an Obligation for a Debt due by fimple Contract; otherwife for a Debt due by Specialty; but if a Stranger give a Bond for a Debt due by fimple Contract from another, it will be no Extinguishment.

So if a Man after an Act of Bankruptcy committed, give a Bond for a finiple Contract Debt, it will not fo far extinguish the fimple Contract as to deprive the Creditor of petitioning for a Commiffion.

If an Infant become indebted for Neceffaries, and give a Bond in a Penalty for the Money, it will not extinguifh the fimple Contract Debt, for the Bond is void, aliter if it be a fingle Obligation in the very Sum.

The Plaintiff gave a Note of Hand for Rent Arrear, and took a Receipt for it when paid, the Defendant afterward diftrained for the Rent, the Plaintiff brought Trefpafs;, and it was holden, that notwithstanding this Note, the Defendant might diftrain, for it is no Alteration of the Debt till Payment. But if A. indorse a Note to B. for a precedent Debt, and B. give a Receipt for it as Money when paid, yet if he neglect to apply to the Drawer in Time, and by his Laches the Note is loft, it will extinguish the precedent Debt, and in an Action he would be nonfuited.

If a Landlord accept a Bond for the Rent, this does not extinguish it, for the Rent is higher, and the accepting of a Security of an equal Degree is no Extinguishment of a Debt, as a Statute-Staple for a Bond. But a Judgment obtained upon a Bond is an Extinguishment of

it.

1

12

PART

PART III.

Containing ONE BOO K.
Of Actions given by Statute.

INTRODUCTION.

AVING in the two former Parts of this Work

H treated of fuch Actions as are founded either upon

Torts or upon Contract, it is now proper to take Notice of fuch Actions as are given by the Statute Law; and they are of two Sorts:

1. Such as are given to the Party grieved.

2. Such as are given to the common Informer.

It would be endless to mention all the Acts of Parliament that give Actions; I will therefore only fet down fuch as are in moft frequent Ufe; taking Notice likewife of fuch general Rules as are applicable to all Actions upon Statutes..