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sumpsit (a). But if the defendant plead a release, and the release is in fact limited in its operation, and not inconsistent with the plaintiff's right to sue the defendant for a particular purpose, the plaintiff may crave oyer of the release, and aver in his replication that he is suing for the purposes stated in the release (6).

Where the obligee has covenanted with a sole obligor not to sue him; there, to prevent circuity of action, the covenant may be pleaded quà a release to an action on the bond (c). But a distinction is taken between a covenant not to sue a sole obligor, and a covenant not to sue one of several obligors (d). Thus, if A. is bound to B., and B. covenants never to put the bond in suit against A.; if afterwards B. sue on the bond, A. 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. covenants 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. He may sue the other, because he might, without this covenant, sue one of them without the other (e). And the case of Lacy v. Kynaston was followed in that of Dean v. Newhall (f), before Lord Kenyon, where it was held, that, to an action against one of two obligors in a joint bond, the defendant could not plead, by way of release, a covenant by the plaintiff not to sue his co-obligor. It follows, from these cases, that if, after a covenant not to sue one partner, the plaintiff enforces judgment against all, the covenantee must bring his action on his covenant, for he cannot plead the covenant in bar (9).

II. Payment by one of two partners may be pleaded as pay

(a) Solly v. Forbes, ante, p. 429.

(6) Ibid. And see Payler v. Homersham, 4 Mau. & Sel. 423; Simons v. Johnson, 3 B. & Ad. 175.

(c) Ayliff v. Scrimshire, 1 Show, 46 ; Smith v. Mapleback, 1 T. R. 446.

(d) Hutton v. Eyre, 1 Marsh. 608. D. Holroyd, J., Thomas v. Courtnay, 1 Barn, & Ald. 8.

(e) Lacy v. Kynaston, 12 Mod. 551; 1 Lord Raymond, 690. A deed inter partes cannot operate as a release to strangers. Storer v. Gordon, 3 Mau. & Sel, 308.

(f) 8 T. R. 168.

(9) See 1 Marsh. 608; Dowse v. Jeffries, And. 307; Turner v. Davies, 2 Wms. Saund. 150, note 2.

ment by both. So a tender by one of two partners may be pleaded as a tender by both. But, after a tender of what is due from two persons on a joint contract, a subsequent application to one of them is sufficient to support a replication to a plea of tender, that the plaintiff subsequently demanded pay. ment from the defendants (a).

III. A former recovery for the same debt may be pleaded by partners, though the recovery was against one only. But it must be shewn by the plea, that the plaintiff took the fruits of that recovery in satisfaction of the joint debt. Therefore, where one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill judgment was recovered; such judgment was held to be no bar to an action of covenant against the three; the defendants, though they averred in their plea that the bill was given for payment and in satisfaction of the debt, omitting to aver that the bill had been accepted as satisfaction, or had in fact produced satisfaction 6).

Where an action is brought against some of the partners of a firm, and the defendants recover a verdict, and afterwards a new action is brought against the other partners for the same demand, they may plead the former judgment in answer to the action ; because otherwise, if a verdict should be recovered against the latter partners, they might call on their copartners for contribution, and the latter would thus be made circuitously to pay the plaintiffs after having obtained a verdict in the action brought directly against them (c).

Where a debt is several as well as joint, as in the case of a joint and several bond or promissory note, judgment recovered against one of the joint debtors will be no bar to an action against the other. But it should seem, that where the debt is joint only, a judgment against one joint contractor would be a bar to an action against another; because the latter might plead that he made no promise, except with the former (d).

(a) Peirse v. Bowles, 1 Stark. 321.

(6) Drake v. Mitchell, 3 East, 251 ; and see liggins's case, 6 Rep. 46 a; Ashbrooke v. Snape, Cro. Eliz.

(c) See arg. Wilson v. Hirst, 4 B. & Ad. 763.

(d) See Lechmere v. Fletcher, 1 C. & M. 639.

IV. Another matter which the partners may now plead in bar of an action, and which indeed they must plead (a), although formerly they might have given it in evidence under the general issue, is that of set-off. As the rules of law regarding set-off are equally applicable, whether the action be brought by or against partners, the observations which follow are directed to either of these cases.

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 (6). To obviate this inconvenience, and to prevent circuity of action, or a bill in equity, it was enacted by statute 2 Geo. 2, c. 22, s. 13, 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.” This was made perpetual by 8 Geo. 2, c. 24, s. 4; and to remove any doubt as to whether debts of a different nature could be set off, it was further enacted by that act, that “mutual debts may be set against each other, 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 hath 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 plea shall be shewn how much is truly and justly due on either side; and in case the plaintiff shall recover in such action or suit, judgment shall be entered for no more than shall appear to be truly and justly due to him, after one debt being set against the other as aforesaid.”

It is observable from the words of the statutes, that the demand, as well of the plaintiff as of the defendant, must be a debt, and a set-off is not allowed in action for torts, as upon the case, trespass, replevin, or detinue (c). The only actions on

(a) Graham v. Partridge, 5 Dowl. Pr. C. 108.

(6) Selwyn, N. P.573. See also

D. Littledale, J., May v. Brown, 3
Barn. & Cres. 134.

(c) i Chit. Pl. 486; B. N. P. 181.

which a set-off is allowed are assumpsit, debt, and covenant for the non-payment of money (a); and it has been laid down, that debts, to be set off, must be such as an indebitatus assumpsit will lie for; and that uncertain damages, or an unliquidated demand, cannot be made the subject of a set-off (6).

As mutual debts only can be set off against each other, the debts sought to be recovered, and those sought to be set off, must be due in the same right. A joint debt, therefore, cannot be set off against a separate debt, nor a separate debt against a joint one (c). Thus, in an action on a policy, effected by the plaintiff in his own name, but in which others are interested with him, the defendant cannot set off a debt due to him from the plaintiff only (d). So, in an action by the solvent partner, and the assignees of a bankrupt partner, to recover monies paid by the latter after his bankruptcy, the defendant cannot set off a demand which he has against the firm to a larger amount (e).

But demands which are essentially, though not perhaps specifically or in point of form, joint, may be set off against each other. Thus, if a person give a note to his bankers for a debt due to them, and they afterwards indorse it to one of their members as his separate property; in an action by such indorsee against the maker, the latter may set off any debt due to him from his bankers, against the demand on the note: for here the demands were originally joint and mutual, and are not altered by the private arrangement of the partners (). So, money

due for advances made by bankers to a customer, upon a bond given by the customer to one of the partners, in trust for the rest, may be set off against a debt from the firm (g). And, clearly, although a mere nominal partner contract a debt, yet, if it be

(a) i Chit. Pl. 486; B. N. P. 181. (f) Puller v. Roe, 1 Peake, 197.

(6) Per Ashurst and Aston, Js. (9) Crosse v. Smith, 1 Mau. & Howland v. Strickland, Cowp. 56. Sel. 545.

In bankruptcy it has (c) Tidd, Prac. 717; J. S. Saund. been held, that, under certain cirPl. tit. “Set-off ;" M‘Gillivray v. cumstances, distinct banking-houses, Simson, 2 Car. & Payne, 320; Jones having some members in common, v. Fleeming, 7 Barn. & Cres. 217.

may set off the amount of the bank(d) Grant v. Royal Exchange rupt's notes in their hands, against Ass. Co. 5 Mau. & Sel. 439.

the amount of all their respective (c) Thomason v. Frere, 10 East, notes in the bankrupt's hands. Ex 427; Stanniforth v. Fellowes, 1 parte Huckey, 1 Madd. 577. Marsh, 184.

contracted in the partnership name, such debt may be set off in an action by the firm (a).

A similar observation may be applied to demands which are essentially separate. Thus, if a firm be carried on in the name of only one person, in an action by the firm, the defendant may set off a separate debt from that person, against the debt for which he is sued (b). So, if a factor who sells goods for a firm under a del credere commission, sells them as his own, and the buyer knows nothing of the owners, he may set off a debt due to him from the factor, against the demand of the owners of the goods (c). So, likewise, an obligee on a joint bond, executed by one obligor only, may set off the bond debt in an action brought against him by the executing obligor (d).

And although joint demands cannot ordinarily be set off against separate demands, or vice versá, yet, where there is an express agreement between a person dealing with a firm, that the debts severally due from the members of the firm to that person shall be set off against any demands which the firm may jointly have on him, it has been held that such agreement will be binding (e).

Where the action is brought by a surviving partner, the defendant may set off a debt due from the plaintiff as surviving partner, against a debt due from himself to the plaintiff in his own right (f). And, conversely, a debt due to a defendant as surviving partner, may be set off against a demand on him in his own right (g).

A judgment debt due from A. and others, in an action of trespass, may be set off against a judgment debt due to A. from the plaintiff (h).

The Courts of common law will, upon motion, in some cases, order opposite demands arising upon judgments, to be set off against each other, although the parties to the different records

(a) Teed v. Elworthy, 14 East, 213. See Booth v. Hodgson, 6 T. R. 405.

(6) Stacey v. Decey, 1 Esp. 469; 7 T. R. 361.

(c) George v. Claggett, 7 T. R. 359.

(d) Fletcher v. Dyche, 2 T. R. 32; and see Elliott v. Davis, 2 Bos. &

Pull. 338.

(c) Kinnersley v. Hossack, 2 Taunt. 128.

(f) French v. Andrade, 6 T. R. 582.

(9) Slipper v. Slidstone, 5 T. R. 493.

(h) Bourne v. Bennet, 4 Bing. 423; 1 Moore & Payne, 141.

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