feffion of the action without confeffing affets defcended, or upon demurrer, or nil dicit, it fhall be for the debt and damages without any writ, to enquire of the lands defcended. The plaintiff may join iffue on the plea riens per difcent, 1 Barnes 329. without replying as he is impowered by this ftatute, and in fuch cafe the jury are not to fet out the value of the land defcended, but it is fufficient for them to find that lands came by difcent fufficient to answer the debt and damages. 12 An. The defendant pleaded riens per difcent al temps del original, Jefferys. the plaintiff replied, that the defendant had fufficient lands Barrow, Paf. before the time of the original purchased, and on iffue thereon a verdict was given for the plaintiff, but no enquiry of the value of the lands, and the court awarded a repleader; iffue ought not to have been joined on the fufficiency of the land defcended. Winder and Barnes, E. 16 The heir cannot have two defences, one at common law, and one on the ftatute: therefore if to riens per difcent al temps G. 2. del wit, the plaintiff reply that before the time lands defcended, the heir cannot rejoin that he fold them and paid bond debts to the amount; he ought to disclose the whole in his bar at once. Debt on bond against the defendant as brother and heir to Jenks's cafe, 7. S. upon iflue riens per difcent a fpecial verdict that the Cr. Car. 151. obligor was feifed in fee, had iffue and died feifed, and the iffue died without iffue, whereupon the lands defcended to the defendant as heir to the son of his brother, and the court held the iffue was found against the plaintiff; for the defendant hath nothing as immediate heir to his brother, and if he would charge him as collateral heir he ought to have made a fpecial declaration. Kellow and Carth, 126. Rowden, But if A. fettle an eftate upon himself for life, remainder to his first and other fons in tail, remainder to his own right heirs, and enter into a bond, and die leaving a fon who dies without iffue, whereupon the uncle enters, he may be charged as brother and heir of A. for he must make himself heir to him who was last actually feifed.-And note, a reverfion ex- Ibid. pectant upon an estate tail is not affets to charge the heir upon the general iffue riens per difcent; but a reverfion expectant upon an eftate for life must be pleaded fpecially. But in debt for rent upon the plea of nil debet, he cannot give in evidence difbursements for neceflary repairs, where the 1 Raym. 370. 1 Raym. 746. Co. L. 47. Cr. J. 320. Ryley v. Hickes, M, 2 G 2. per Per Holt, at Stra. 705. 1 Vent. 236. plaintiff is bound to repair, for he might have had covenant against him; but he may give in evidence, entry and eviction by the plaintiff. But if the leffor enter by virtue of a power reserved, or as a mere trefpaffer, yet if the leffee be not evicted, it will be no fufpenfion of the rent. On nil debet the plaintiff proved a note by which the defendant agreed to hold for a year at 157. the plaintiff was grantee of a reverfion, and the life at that time dead, but he had never been in poffeffion: the defendant was permitted to give in evidence a prior grant of the reverfion notwithstanding the note: but Holt Ch. Juft. faid, if the plaintiff had ever been in poffeffion, though but as tenant at will, the defendant could not give in evidence nil habuit in tenementis, without having been evicted. So he may plead non demifit, and give the special matter in evidence, but if the leafe were by indenture he could not plead this plea, for an indenture concludes both parties. In debt for rent the defendant pleaded infancy at the time of the leafe made, and upon demurrer the court held the lease voidable only at the election of the infant, by waiving the land before the rent day comes, but the defendant not having fo done, and being of age before the rent day came, the plaintiff had judgment. A leafe by parol for a year and an half, to commence after the expiration of a leafe which wants a year of expiring, is a good leafe within the ftatute of frauds, for it does not exceed three years from the making. If the defendant infift that the leafe declared on is not the plaintiff's, the plaintiff may fhew it was made by A. who had authority from him to execute it in his name, and the authority need not be produced. But the leafe must be made and executed in the name of the principal. By the 32 H. 8. c. 37. The executors and adminiftrators of tenants in fee, fee tail or for life of rent fervices, rent charges, rents feck and fee farms, may bring debt for the arrearages against the tenant who ought to have paid the fame. For the conftru&ion of this ftatute, vide ante paft 1 lib. 2. cap. 4.—The action is local, and must be brought where the land lies. Note; detinet for rent against an executor must be brought where the leafe was made, because it is for arrears in the teftator's time: but when it is in the debet and detinet for rent ac crued crued in the executor's time, it must be where the land lies, but if iffue be joined it cannot be altered, because it is agreed to by the defendant. Debt for rent against the leffee may be either where the Str. 776. land lies, or the deed was made, but an affignee is charge able only on the privity of eftate. Burrel C. B. Debt against an executor on a judgment fuggefting a deva- King and favit, may be either in Middlefex where the judgment is en- Mic. 3 G. 2. tered, or in the county where the devaftavit is laid to be. But if the defendant admit the judgment and traverse the wasting, that iflue must be tried in the proper county. Davis v. To debt upon bond, the defendant being an executor, pleaded a judgment had against him on a fimple contract debt ultra, &c. and upon demurrer the plea was holden good, for otherwife an obligee might ruin an executor by keeping the Mod. 75. bond in his pocket: he ought to give notice of it, Nay it has been holden, that an executor is not bound to take notice of a judgment obtained against his teftator. S. P. 3 Mod. 115. The jury must answer to all they are charged with, there- Str. 1999. fore where in debt upon a charter party, whereby the defendant was to pay fifty guineas per month, the plaintiff declared for 500l. the defendant pleading that he had paid for all the time the ship was in his fervice, iffue was joined thereon; the jury gave a verdict, that 357 . remained unpaid, but faid nothing as to the reft of the 500 l. and therefore on a writ of error, K. B. reverfed the judgment and note; that in Raym. 1521. fuch cafe, if no judgment be given, a ve, de novo fhall iffue. The jury befide finding the debt ought to give damages for the detention, which is ufually 1 s. though under particular circumstances it may be more; as fuppofe the principal and intereft due on a bond exceed the penalty, the jury ought to give the refidue in damages as well as in debt upon a single bill. This is a proper place to take notice of the ftatutes for fetting off mutual debts, and alfo to confider what is an extinguishment of a debt. By 2 G. 2. c. 22. Where there are mutual debts between plaintiff and defendant, or if either party fae or be fued as executor or adminiftrator, where there are mutual debts between the teftator or inteftate, and the other party, one debt may be fet against the other, and fuch matter may be given in evidence Per Wild, J. on the general iffue, or pleaded inbar, 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 fum 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 reafon 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 shewn how much is truly and justly due on either fide, and in cafe the plaintiff shall recover, judgment shall be entered for no more than shall appear to be due after one debt fet against the other. A notice was as follows, take notice that you are indebted to me for the use and occupation of a house for a long time held and enjoyed, and now lately elapfed. The debt intended to have been fet off was for rent referved 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 set off in an action against him on his own bond. Where the plea is of an equal fum, there the action is barred, but if it be for a lefs fum than for what the action is brought, the defendant must pray to have it fet off. The day after the last act paffed, Lord Hardwicke, Ch. Juft, delivered the opinion of the court of K. B. that a debt by fimple contract might by the former act have been set off against a specialty debt. If there be mutual debts fubfifting between the teftator and J. S. the executor will be indemnified in fetting off 7. S.'s debt against his teftator's without bringing an action against him. In debt upon bond, the defendant pleaded a greater debt in bar, upon which the plaintiff prayed to have the condition of his bond inrolled, which was to appear at Westminster, and demurred; and it was holden that this bond was not within the 8 G. 2. for that ftatute relates only to bonds conditioned to pay money, and not to bail-bonds; and it was not within the ftatute ftatute 2 G. 2. 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 fheriff, 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. Lofting and Stevens, Collins and Collins, Tra 32 G, 2. In debt on bond, the defendant craved øyer of the condition, which was to pay the plaintiff 107. a year during life, and then pleaded, that the plaintiff was indebted to him in the fum of 500 l. for money lent, &c. exceeding the yearly fums that had incurred for the annuity, and offered to set off as much, &c. and on demurrer the plea was holden good. To affumpfit for 40 l. lent, &c. the defendant pleaded arti- Nedriff and cles of agreement with mutual covenants in a penalty of 2001. 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 ftatutes, for there may not be 5. justly due to the defendant on the balance. A debt barred by the ftatute of limitations cannot be fet off. If it be pleaded in bar to the action, the plaintiff may reply the ftatute of limitations. If it be given in evidence on a notice of set-off, it may be objected to at the trial. Hogan, E. 33 G. 2. Shipman and 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 teftator 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 30 %. the plaintiff Bafkervil and took a verdict for the whole fum, the defendant had at the fame fittings an action against the plaintiff for 11. to which Sittings. there was a notice to set off the note of hand; and the court held that notwithstanding the verdict, the note of hand might be fet off, for if at the time of the action brought there are mutual demands, they by the ftatute may be fet off; and justice may be done by entering a remittitur on the first record as to fo much, The affignce of a bankrupt brought an action for work and labour, the defendant gave notice of a fet-off, and at the trial produced a negotiable note given by the bankrupt antecedentto Brown, Tr. March, affignee of May . |