The consequence is, that no action at law can be maintained upon the agreement by the one party against the ather. Judgment for the defendant. 1835. GREEN บ. BEESLEY. GROOM and Others, Assignees of GEORGE DIACK, a DEBT. The declaration stated, that, on the 1st Janu- Plea-that the said George Diack, before and at the Plea. time of his becoming bankrupt, was indebted to the defendant in 3007. for money before then found to be due from the said George Diack to the defendant, upon an account before then stated between them, which said sum of 3001, was still wholly unpaid, and the plaintiffs, as assignees as aforesaid, before and at the commencement of this suit were and still are indebted to the defendant in the 1835. GROOM v. MEALEY. Demurrer. Joinder. amount thereof; and which said sum of money so due from the plaintiffs, as assignees as aforesaid, to the defendant, exceeded the amount of the debt owing from the defendant to the plantiffs, as assignees as aforesaid; and the defendant thereby offered to set off and allow to the plaintiffs, as such assignees, the full amount of the said debt out of the debt so owing from the plaintiffs, as assignees as aforesaid, to the defendant, according to the form of the statute in such case made and provided: and this the defendant was ready to verify; wherefore &c. Demurrer-For that the debt in and by the plea attempted to be set off, and the debts to which the said set-off was pleaded respectively, were not mutual debts, nor due to the parties respectively in the same right or character, in this, to wit, that the debt so attempted to be set off appeared in and by the plea to have been due from G. Diack to the defendant before Diack became a bankrupt, and the debts to which the same was attempted to be set off were pleaded and shewn to have been contracted with the plaintiffs, as assignees as aforesaid, since the said bankruptcy: and also that no debt capable of being set off in this action was in any way shewn in or by the plea, in this, to wit, that a debt due from the plaintiffs in their private capacity could not by law be set off against a debt contracted with them as assignees as aforesaid; and that a debt due from the bankrupt before his bankruptcy, and remaining unpaid, did not by law become a debt due from his assignees; and that the plaintiffs in their political capacity as assignees could not by law become indebted as in the plea alleged: and also for that &c. The defendant joined in demurrer. J. Henderson, in support of the demurrer.-The plea is bad. In order to entitle a defendant to a set-off, the two debts must be mutual; the debt to be set off must be due in the same right as that against which it is sought to set it off, and the claim must be one for which the defendant would be entitled to maintain an action against the plaintiffs: therefore, a debt due from a bankrupt before his bankruptcy cannot be made the subject of a set-off against a debt accruing from the defendant on a contract with the assignees since the bankruptcy-Ridout v. Brough, Cowp. 133. Mansel, contra.-The declaration is for money had and received by the defendant to the use of the assignees (not alleging it to have been received since the bankruptcy), and upon an account stated with the plaintiffs as assignees since the bankruptcy. Non constat that the money was not received by the defendant before the bankruptcy of Diack; in which case it might still be money remaining in the hands of the defendant for the use of the assignees after the bankruptcy of Diack. The plea, therefore, alleging the bankrupt to have been indebted to the defendant before his bankruptcy, is well pleaded: for, every debt capable of proof under the commission may (by s. 50 of the 6 Geo. 4, c. 16) be the subject of a set-off. J. Henderson, in reply.—If the money were received since the bankruptcy, it clearly was not a debt against which the defendant could claim a set-off; and, if received before the bankruptcy, in order to become money received to the use of the assignees, it must have been received by way of fraudulent preference: in either case, therefore, it would be a debt due to the assignees. TINDAL, C. J.-The question is, what is the import and meaning of the right in which the plaintiffs claim this money. The declaration alleges that the defendant is indebted to the plaintiffs as assignees in 100%. for money received by the defendant for the use of the plaintiffs as such assignees. Primâ facie, this imports money received 1835. GROOM v. MEALEY. 1835. GROOM v. MEALEY. by the defendant since the bankruptcy. It is true that money received before the bankruptcy might under some circumstances be money received to the use of the assignees. But, inasmuch as the plea does not affect to give any answer to a case where the defendant would have no right of set-off, I think it is bad. If the money were received after the bankruptcy, or by way of fraudulent preference before the bankruptcy, it would equally be money received to the use of the assignees, and therefore not a debt against which the defendant could set off money due to him from the bankrupt. The plea affects to be a general answer: it should have alleged that the money was received before the bankruptcy, and then the set-off would have been applicable. The rest of the court concurring— Judgment for the plaintiff. Wednesday June 13th. In case for a nuisance, the declaration stated that the plaintiff was possessed for the residue of a term of a mes suage, and that he was disturb ed in its enjoyment by the ELLIOTSON v. FEETHAM and Another. CASE for a nuisance. The declaration stated that the plaintiff before and at the time of committing the grievance thereinafter mentioned, was, and from thence hitherto had been and still was lawfully possessed, for the rest and residue of a certain term whereof eleven years and upwards were yet to come and unexpired, of a certain messuage or dwelling-house, with the appurtenances, situate alleged nuisance in the parish of St. George, Hanover Square, in the county of Middlesex, in which said messuage or dwellinghouse, with the appurtenances, the plaintiff and his family during all the time aforesaid inhabited and dwelt; and that the plaintiff had for and during all the time aforesaid used, exercised, and carried on, and still did ex The defendants pleaded that they were pos sessed of their workshops and manufactory (the nuisance complained of) for ten years before the plaintiff became possessed of his term. The plaintiff replied that the term whereof he held the residue was created four years before the defendants were possessed of their said workshops and manufactory :Held, on demurrer, that the plea was bad: the defendants should at least have alleged an user for twenty years. ercise and carry on the profession of doctor of medicine and physician at and in the said messuage or dwellinghouse; that the defendants, before and at the time of committing the said grievance, and from thence hitherto, were possessed of certain workshops, and of a certain manufactory for the working of iron, and for the making and manufacturing of ironmongery goods, situate near to the said messuage or dwelling-house with the appurtenances of the plaintiff: nevertheless, the defendants, being so possessed of the said workshops and manufactory, and well knowing the premises aforesaid, but contriving and wrongfully and unjustly intending to injure the plaintiff, and to interrupt, disturb, disquiet, and annoy him and his family in the peaceable and quiet possession, use, occupation, and enjoyment of the said messuage or dwellinghouse, with the appurtenances, and also to injure, interrupt, and disturb him in the exercise of his profession aforesaid, whilst the plaintiff was so possessed of his said messuage or dwelling-house, with the appurtenances, and so inhabited and dwelt therein with his family, and whilst he so used, exercised, and carried on his said profession therein as aforesaid, to wit, on the 20th July, 1831, and on divers other days and times between that day and the commencement of this suit, wrongfully and unjustly made and caused to be made in their said workshops and manufactory divers large fires, and also divers loud, heavy, jarring, varying, agitating, hammering, and battering sounds and noises, although they, the defendants, were on those several days and times aforesaid urged and requested to desist therefrom: by means of which said several premises the plaintiff and his family were greatly disturbed and disquieted, incommoded, interrupted, and annoyed in the peaceable and quiet possession, use, occupation, and enjoyment of the said messuage or dwellinghouse, with the appurtenances; and the said messuage and premises of the plaintiff had been and were by means 1835. ELLIOTSON v. FEETHAM. |