the assignee, in the name of the payee, set off demands which he had against the payee, prior to the making of the note, merely upon proving those demands without further explanation; as it is to be presumed from the fact of his subsequently giving a note, coupled with his promise to the assignee to pay it, that the subject of the set-off had been previously satisfied. (a) So, where the assignee of a bond gave notice of the assignment to the obligor, who paid one hundred dollars to the assignee, and promised to pay the balance; in an action afterwards brought on the bond, it was held that a set-off against the assignor, which was alleged to exist at the date of the bond, could not be allowed; the presumption being, from the promise of the defendant, and his silence on the subject of the set-off, that his claim against the obligee had been previously settled. (b)* 11. Where there has been a settlement of account. § 75. Where the nature, employment, transaction, or dealings, necessarily constitute an account, consisting of receipts and payments, debts and credits, only the balance can be the debt, or be recovered. § 76. But the previous settlement of an account between the plaintiff and the defendant, will not pre (a) Gould v. Chase, 16 John. R. 226; cited and approved in Henry agst. Brown, 19 John. 49; Wiggin v. Damrell, 4 N. H. R. 69. (b) Henry agst Brown, supra; Eels v. Finch, 5 Johns. 193. * Plaintiff having recovered a judgment against defendant, and defendant having afterwards recovered a judgment against the sheriff, who was indemnified by the plaintiff to make the levy on which defendant's action was founded, and the defendant having assigned his judgment to a third person, on the day of its rendition, the two judgments cannot be set off against each other, in equity, on account of the defendant's insolvency, unless it is alleged and proved that he was insolvent at the time of the assignment of his judgment (Henderson v. McVay, 32 Ala. 471). clude the latter from setting off a claim which, by mistake, was omitted from the account. An action was brought upon the following writing: "On a settlement this day I acknowledge myself to be indebted to the estate of J. H., deceased, the sum of five hundred and twenty dollars and fifty cents, money actually received by me. W. B." On the trial, the defendant offered to prove by way of set-off, that J. H. in his lifetime was indebted to him for the keeping of a horse, and also the payment of a sum of money to the order of the plaintiff. But the evidence was excluded. Held, that as the writing upon which the suit was brought, implied the acknowledgment of a debt, due J. H. in his lifetime, it was competent for the defendant upon showing a mistake in the settlement, to avail himself by way of set-off of any debt due him by the decedent in his lifetime; that therefore the evidence introduced by the defendant, as it tended not only to show a mistake in the settlement, but conduced also to prove the decedent to be indebted to him for keeping the horse, it should have been left with the jury, for their determination. (a) In an action brought to recover the balance of a settled account, the defendant offered to prove that he and the plaintiff, after the suit was instituted, had reviewed the settlement of the very accounts which gave rise to the supposed balance for which the suit was brought; that on the last settlement the balance fell the other way, and that the plaintiff gave his note for it; all which he offered to prove by the production of the note, and by the declarations of the plaintiff. Held admissible. (b) (a) Banton v. Hoome's Exrs. 1 A. K. Marsh. 19. A bank lent to C. & M. $12,000.00 for which they were to ship cotton to the commission merchants of the bank at New Orleans, to be thence re-shipped to Liverpool and sold for account of C. & M., and the proceeds held subject to the order of the bank. Two hundred bales of cotton were accordingly shipped for which the bank afterwards rendered a credit of $6,711.39. C. & M. were not satisfied with the amount of this credit, and they were permitted to show by way of increasing the amount of the offset, the quality of the crop of cotton of that year, the usual weight of the bales, and the average price at Liverpool about the time the sale took place. (a) * 12. In case of agreement. § 77. Where an agreement is relied upon in support of a set-off, it must be proved to have been made upon a sufficient consideration, and to be valid and binding. A. having executed and delivered to B. a deed of certain land, afterwards called upon B. for his note for the purchase money. B. hesitated about giving his note, saying that A.'s wife had not released her dower." Whereupon A. promised that his wife should do so. In an action on the note, B. claimed that he was entitled to a set-off to the value of the dower. But it was held (a) Commercial Bank of Manchester v. Chisholm, 6 Smed. & Marsh. 457. * If inquiry is to be instituted into the value of the money loaned, it must be confined to the time of the loan, and the place where it occurred. If the notes were of par value when received, all that the plaintiff can be chargeable with for foreign exchange, is the premium between par paper, and exchange on Liverpool at the time of the sale of the cotton. If below par when paid out by the bank, then the amount of the discount on them must be added to that premium so as to make them equivalent to par funds at the time they were paid out by the bank (Com. Bank of Manchester v. Chisholm, supra). that he was not; that the promise made subsequent to the execution of the deed was without consideration, as the note then given was the consideration of the deed; that the promise was also against the policy of the law which secures to the wife her dower independent of the control of her husband; and, furthermore, that a possible injury was not a subject for damages, and as her husband was then living it was only possible that the right of dower might accrue. (a) In Warner v. Barker (b) the set off was claimed on the ground of an agreement to allow it on the demand for which the suit was brought. The only evidence of agreement was the declaration to a third person who then had no interest in the matter to which it related; which being made without any consideration, it was held did not preclude the plaintiffs from interposing any legal objection to the set-off, which would exist but for such declaration. * (a) Massey v. Craine, 1 McCord, 489. (b) 3 Wend. 400. * In an action on a bond brought by the assignee, the defendant may set off an agreement by him to sell land to the obligee, in which agreement the parties mutually bound themselves in the sum of $200.00 to be paid by the party failing, to the party complying; whether such sum be regarded as a penalty, or in the nature of stipulated damages (Mann v. Dungan, 11 Serg. & R. 75). Gibson, J.: "A debt due but not payable at the time of the assignment, may be set off, although a debt which became due afterwards cannot. If, then, the $200.00 be considered as a penalty, the case is clear of doubt; the purchase money would be a debt presently due, but payable in future; but if stipulated damages, then such damages take the place of the purchase money for which they are an equivalent, and thus, by relation, become a debt which was due at the time of the assignment. It is the business of the assignee to call on the obligor previously to the assignment, to ascertain whether he has an existing defence; and although he might not be affected by notice, of a state of things that might by the happening of a contingency end in a State of indebtedness, yet such a case is very different from the present, where it was certain from the beginning that the vendor would have a valid claim against the vendee for the purchase money, or for at least a part of the $200.00 either as a penalty, or as stipulated damages. I am of opinion, therefore, that the set-off is available against the plaintiff, as assignee.' The case of Mann v. Dungan, supra, was an action on a bond executed Plaintiff, an attorney, undertook a prosecution for perjury on defendant's behalf and agreed not to charge him full costs except money out of pocket. Through negligence, he preferred a defective indictment, and in consequence, the prosecution failed. Defendant in the course of the proceedings advanced plaintiff 1007. for carrying them on, and he applied it accordingly. Held, that in an action by plaintiff for professional charges and disbursements, defendant could not set off the 100%. as money received by plaintiff to his use. (a) In an action by the holder of a due bill against the maker, the defendant was not allowed to set off a payment made by him upon an undertaking executed by A., the father of the defendant, whereby A. became surety for the payee of the due bill, and afterwards. became liable as such in his lifetime, A. having devised certain lands to the defendant upon condition that he should pay the testator's debts. (b) * 13. Where the defendant's claim is doubtful. § 78. If the defendant's claim be doubtful, and by Mann the defendant below, to Morris, by whom it was assigned to Dungan the plaintiff. The defendant offered to set off a certain article of agreement entered into between him and Morris, for the sale by the former to the latter of a house and lot, and further stated that he would prove an express promise of Morris that the demand of the plaintiff should make part of the purchase money of the house and lot. Morris was to pay part cash, and to secure the balance of the purchase money by a bond. For the performance of this agreement, the parties bound themselves "in the sum of $200.00 to be paid by the party failing, to the party observant." It did not appear that the offer to prove the above agreement, was accompanied by any offer to prove the promise alleged of Morris, that the bond on which suit was brought should constitute part of the purchase money. (a) Lewis agst. Samuel, 8 Adolphus & Ellis, N. S. 685. (b) Lyman v. Newman, 29 Barb. 162. * "When a plaintiff has received notice that a demand against him has been assigned to the defendant, and has agreed to pay it to him, or to receive it as payment towards his demand before his suit was commenced, it may be set off" (Rev. Sts. of Maine, Ed. of 1857, p. 521). |