the plaintiff may reply such taking in execution (k). In such case, however, the court, on application, will permit the defendant to enter satisfaction on the roll in the action against him, on his acknowledging satisfaction for the same amount in the action at his suit (1). And it is no answer to a set-off that the defendant has sued or obtained a verdict for the amount (m). Money due on a judgment more than a year and a day old, and which has not been revived by scire facias, cannot be the subject of a setoff (n).

There can be no set-off in respect of a debt barred by the statute of limitations, unless the claim has been revived by a written and signed acknowledgment, or a part payment (o). And if the plaintiff intend to rely upon the statute as a bar to a plea of set-off, he should reply specially, that the causes of set-off did not accrue within six years next before the commencement of the suit (p).

A debt cannot be set off, unless actually due and in arrear at the time of the commencement of the action, that is, when the writ was issued, and from thence continually until the plea is pleaded. Therefore a plea, stating that the plaintiff was indebted to the defendant "at the time the plaintiff declared," "at the time of the plea pleaded," or at the time of the commencement of the suit, without inserting the words "and still is indebted," is bad (q). Nor can there be a set-off or deduction on account of money secured by a promissory note or bill of exchange, not due when the suit was commenced (r). Nor can a liability on the defendant's part to pay money for the plaintiff be set off, the money must be actually paid before the writ is issued (s). So where two cross actions were referred to arbitration, and in one (trespass) the arbitrator found for the plaintiff

(p) Chapple v. Durston, 1 C. & J. 1; post, 855.

(q) Evans v. Prosser, 3 T. R. 186; Eland v. Karr, 1 East, 376; Braithwaite v. Coleman, 4 Nev. & Man. 654; Dendy v. Powell, 3 M. & W. 442; 6 Dowl. 577, S. C.; Petch v. Conlan, 7 Dowl. 426. But a sum not due when an action is commenced may, on the reference of such action, be made, by consent, the subject of a set-off; id.

(r) Rogerson v. Ladbrooke, 1 Bing. 93; 7 Moore, 412, S. C.

(s) Leman v. Gordon, 8 C. & P. 392.

40s. damages with costs; and in the other action (assumpsit) he awarded 1021. to the plaintiff therein, such sum to be paid at a future day; it was held that the latter could not before that day set off that sum against the damages and taxed costs in the action of trespass (t).

Although an attorney cannot recover his bill for business done in a court unless he has delivered it signed a month before action brought (u), yet he may set off the amount, provided he deliver the bill before the trial; but it is immaterial that at the time of the trial a month from the delivery had not elapsed (r).

Although the debt sought to be recovered and that intended to be set off need not be of the same nature or degree, to entitle the defendant to avail himself of this defence, it is necessary that they should be mutual, and due in the same right (y).

Therefore, in an action by two persons, the defendant cannot set off a debt due to him from one of the plaintiffs; nor can one of several defendants set off a debt due to him alone from the plaintiff (2). But on the death of one of two or more joint creditors or debtors, the legal right or liability survives, and vests in law exclusively in or against the remaining creditor or debtor. Consequently a debt due to the defendant as surviving partner may be set against a debt due from him in his own separate character (a). And a debt due from the plaintiff, as surviving partner, may be set against a debt from the defendant to the plaintiff in his own right (b).

It has been decided that 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, although it accrued before he had notice that others were interested (c). But the general rule appears to be,

Taunt. 170; and post, 855. As to a setoff in the case of a joint and several obligation, where one debtor alone is sued, and the plaintiff is indebted to the other debtor; 2 Pothier by Evans, 68. (a) Slipper v. Stidstone, 5 T. R. 493. (b) French v. Andrade, 6 T. R. 582. (c) Grant v. The Royal Exchange Assurance Company, 5 M. & Sel. 439, per Lord Ellenborough, C. J. But note, the decision of this point was not necessary; the set-off was not available, as the action was to recover unliquidated damages.

that if a person carry on business as the ostensible sole proprietor, and yet sue with a dormant partner, the defendant may set off a debt due to him from the ostensible partner; the defendant having been ignorant, when he contracted the debt sought to be recovered, that the plaintiff had a partner, and having trusted the plaintiff as sole proprietor before he was aware that he had such partner (d).

A defendant sued as executor or administrator cannot set off a debt due to him personally; nor can a person who is sued for his own debt, set off a debt which accrued to him in his representative character (e).

The statute does not allow the defendant to set off a debt due to him from the plaintiff's testator against a debt which accrued to the plaintiff, in his representative capacity, after the testator's death; for this would be altering the due course of the distribution of assets, and the defendant might thus be indirectly paid before creditors of a higher degree (f). And this doctrine holds, whether the plaintiff declare as executor, or sue, as he may do, in his private character, for the debt which accrued due to him since the testator's death (g). Thus where A., being appointed by B. to receive his rents, after the death of B. received money due to him in his lifetime, it was held that A. could not set off againt the executrix of B., who brought an action for this debt in her private capacity, a debt due to him from the testator; for the testator himself never had any cause of action against the defendant (h). To an action by the executors of an underwriter against an insurance broker, for premiums which accrued due to the testator, the defendant cannot set off returns of premium which became due after the testator's death (i). And a defendant sued by an executor, for money due to the testator, cannot set off the amount of a promissory note, given by the testator, but

(d) Stacey Ross v. Decy, 2 Esp. R. 469, note, cor. Kenyon, C. J. See Lloyd v. Archbowle, 2 Taunt. 324; Skinner v. Stocks, 4 B. & Al. 437; 1 Chitty, Pl. 6th ed. 571; see Cothay v. Fennell, 10 B. & C. 671.

(e) Per Willes, C. J., in Hutchinson v. Sturges, Willes R. 263, 264.

(f) Id.; Scofield v. Corbett, 6 N. &

M. 527.

(g) Id.; Shipman v. Thompson, C. P. 11 Geo. 3, Willes R. 10S; Bul.

not due until after his death, and after the commencement of the action (k).

In an action against a husband for his own debt, he is not allowed to set off a debt due to him in right of his wife (1). Nor can a debt due from the plaintiff's wife dum sola be set off against an action by the husband only; unless the latter has, on some new consideration, made the debt his own, so that the wife would not be a necessary party to an action for the recovery of the demand (m). If a note be made payable to a married woman after coverture, her husband may sue alone thereon; and a debt due from the wife before marriage cannot be set off against his claim (n).

It has been held that in an action by a mere trustee, the defendant may set off a debt due to him from the party beneficially entitled to the money sought to be recovered. In debt on bond, the defendant pleaded that it was given for securing 1007., lent to the defendant by one E. C.; and that the bond was given by her direction to the plaintiff, in trust for her; and that E. C., before the action brought, was indebted to the defendant in more money than the amount of the bond. And a demurrer to this plea was withdrawn by advice of the Court of Common Pleas (o).

A defendant cannot, however, plead, by way of set-off, a bond debt of the plaintiff, assigned to the defendant by a third person, to whom and for whose use it was originally given. Bayley, J., observed that the court could not notice any other than legal rights (p). And in a late case, Tucker v. Tucker (q), the doc

(k) Rogerson v. Ladbroke, 1 Bing. 93; 7 Moore, 412, S. C.; Houston v. Robertson, Taunt. 448, 451; 2 Marsh. 138, S. C.

(1) Paynter v. Walker, and Cooke v. Dixon, Bul. N. P. 179.

(m) Wood v. Akers, 2 Esp. R. 594. (n) Burrough v. Moss, 10 B. & C. 558; 5 M. & R. 296, S. C.

(0) Bottomley v. Brooke, M. 22 Geo. 3, cited 1 T. R. 621; Rudge v. Birch, M. 25 Geo. 3, B. R., cited id. 622. See Fenner v. Meares, 2 Bla. R. 1271; Fair v. MIver, 16 East, 136; Crosse v. Smith, 1 M. & Sel. 545, 556; Morrison v. Parsons, 2 Taunt. 412; Jarvis v. Chapple, 2 Chit. R. 387. In Wake v. Tinkler, 16 East, 38, Lord Ellen

borough said he was more inclined to
restrain than to extend the doctrine of
the cases of Bottomley v. Brooke, and
Rudge v. Birch; and in Scholey v.
Mearns, 7 East, 153, Mr. Marryatt
said that they had been overruled in
a case of Lane v. Chandler, in the
Exchequer; and in Tucker v. Tucker,
4 B. & Ad. 745; 1 Nev. & Man. 482,
S. C., Littledale, J., denied that Bot-
tomley v. Brooke was law; and Parke,
J., said that if the words of the statute
had been looked at, Bottomley v.
Brooke and Rudge v. Birch would
hardly have been decided as they were.
(p) Wake v. Tinkler, 16 East, 36.
(q) 4 B. & Ad. 745.

trine that an equitable demand can be set off at law, was impugned. S. gave a bond conditioned for the payment of money; the obligee made C. his executrix and residuary legatee, and died; C. proved the will, assented to the bequest, and died, not having fully administered, leaving E. executrix of the executrix C. in trust for her (E.'s) own benefit. A sum due on the bond in the first testator's time remained unpaid. C., during her lifetime, in consideration of a marriage about to take place between her and the father of S., gave a bond to a trustee, conditioned for payment of a sum of money to the use of S., if C. should marry and survive her intended husband. She did marry and survive him; and the money not having been paid in her lifetime, the trustee's executor sued E., the executrix of C., upon that bond; it was held, that in such action, the claim of E. upon S.'s bond could not be set off.

We have seen that an agent having a special interest in a contract made by him for his principal, may sue thereon in his (the agent's) own name; but that the claim of the agent is subservient to the right of the principal, or person really and beneficially entitled (r). And although the agent may maintain the action in his own name, yet the demand is in general subject to any set-off which the defendant may have against the principal (s). And where goods, belonging partly to A. and partly to B., were put up to auction at A.'s house, having been entered at the excise in A.'s name, and the catalogue stated them to be all the property of A.; and C. being a creditor of A., purchased several of the articles, without being informed that part of them were the property of B.; it was holden that this was such a fraud that, under the circumstances, the purchaser was entitled to set off, in an action brought by the auctioneer, the debt due to him from A. against the price of the goods of B. (t).

On the other hand, where a principal has allowed his factor or agent to appear to be the true owner of the goods, and to sell

(r) Ante, 230, 231. And in Dickenson v. Naul, 4 B. & Ad. 638, where an auctioneer employed by a supposed executrix, sold goods of the testator, but before payment the real executrix claimed the money from the buyer; it was held that the auctioneer could not sue the buyer, though the latter had expressly promised to pay on being allowed to remove the goods, and had

removed them accordingly.

(s) Jarvis v. Chapple, 2 Chitty R. 387; Coppin v. Craig, 2 Marsh. R. 501; 7 Taunt. 243, S. C. Although an agent may have a lien on goods sold by him, yet he loses it by parting with the goods to the buyer, and then it seems the set-off against the principal applies.

(t) Coppin v. Craig, supra.