VII. PLEAS &c. in cases of cy. The Bankrupt Act (x) provides, that where there has been mutual credit OF SET-OFF. given by the bankrupt and any other person, or where there are mutual debts Set-off, between the bankrupt and any other person, the commissioners shall state the account between them, and one debt or demand may be set against bankrupt another, notwithstanding any prior act of bankruptcy committed by such bankrupt before the credit given to, or the debt contracted by him, and what shall appear due on either side on the balance of such account, and no more shall be claimed or paid on either side respectively, and every debt or demand hereby made payable against the estate of the bankrupt, may also be set-off in manner aforesaid against such estate; provided that the person claiming the benefit of such set-off had not, when such credit was given, notice of an act of bankruptcy by such bankrupt committed. Mode of setting off. [ *574 ] With respect to the mode by which the defendant should avail himself of a strict legal set-off, we have seen (y) that when either the debt sued for, or that which is the subject of the set-off, accrued by reason of a penalty contained in any bond or specialty, the statute enacts that the debt intended to be set-off shall be pleaded in bar, and a notice of set-off is not then allowed. The plea in that case must show how much is truly due on either side, and the sum admitted in the plea to be due to the plaintiff is traversable, though laid under a videlicet (z); and therefore the plaintiff may, in such case, either take issue on the amount of the debt alleged to be due to himself, or may deny the defendant's set-off (a) and if the plaintiff reply that more was due on the bond than the sum named in the plea, and fail in proving that allegation, he will be non-suited (b). But in cases where neither the plaintiff's nor the defendant's debt accrued by reason of a penalty, the defendant has the election to plead, or give notice of his setoff. It has been said, that if at the time of the action brought, a larger sum is due from the plaintiff to the defendant, it is more proper to plead the set-off, but that where the sum intended to be set-off is less than that for which the action is brought, a notice of set-off should be given (c); but the statutes of set-off do not seem to warrant this distinction. In general a notice of set-off is less expensive than a plea; but where the plaintiff in his replication must necessarily admit a part of the defendant's case (d), a plea is preferable; and a set-off is usually pleaded in country causes, to save the trouble and expense of proving the service of notice (e). *Where a set-off is not pursuant to the enactment pleaded, the stat (x) 6 Geo. 4, c. 16, s. 50. There are two (z) 3 T. R. 65; 6 Id. 460. (a) Holt, C. N. P. 293. See the forms, post, vol. iii. (b) Holt, C. N. P. 293. (c) Bul. N. P. 179; Tidd, 9th edit. 697; Montague, 41, acc. Lawes on Assumpsit, 638, contra; 6 Bing. 734. (d) Thus, if it be apprehended that the statute of limitations constitutes an answer to the set-off, it may be judicious to plead instead of giving notice of set-off; because the plaintiff must specially reply the statute if he intends to rely thereon. See 1 C. & J. 1. And if the set-off were on a deed executed by plaintiff, the general replication, nil debet, might be insufficient, and therefore in his replication the plaintiff would be compelled to admit the deed, or the existence of the debt accruing thereon. (e) Tidd, 9th ed. 667; 6 Esp. Rep. 52. setting off. ute (f) provides that the defendant's demand may be given in evidence un- VII. PLEAS der the general issue so as at the time of pleading such plea, notice shall OF SET-OFF. be given of the particular debt intended to be insisted upon by the defend- Mode of ant, and upon what account it became due. But as there is no general issue in an action on a specialty, and a plea of non est factum to an action of covenant on an indenture for non-payment of money only puts in issue the deed, such plea is not a general issue within the meaning of this act, and therefore in an action of covenant or debt on a deed, though no penalty be proceeded for, a set-off should be specially pleaded (g). And it seems that the statute confines the right to give notice of set-off to a case where the general issue is pleaded alone. At all events, such notice cannot be given where several pleas are pleaded (h). The Reg. Gen. Hil. T. 4 W. 4,† Pleadings in Assumpsit, reg. 3, or- Semble ders that "set-off and mutual credit must be pleaded;" and it has been set-off and supposed that this rule abolishes a notice of set-off (i). mutual credit now to be In cases of bankruptcy the accounts may be balanced either upon an ac- pleaded. tion at law, or before the commissioners (k). And in an action at suit of assignees, a set-off or mutual credit might formerly be given in evidence under the general issue, without a plea or notice of set-off (). But now since Reg. Gen. Hil. T 4 W. 4,† each should be pleaded. And to an action by assignee for a debt due to the bankrupt, the defendant might have pleaded a tender as to part, and give evidence of a set-off as to the rest without a plea of set-off (m). But it has been observed, that the practice was to plead and give notice of set-off in an action at law in the case of bankruptcy, in the same manner as under the general statutes relating to set-off, and that practice seems to be just, because it apprizes the plaintiff, of the intended defence (n). and noti ces of set In point of form the plea of set off should not only contain all the requi- The forms sites essential to the validity of other pleas in bar, but must of course of plea show that the debt is of a nature which entitles the defendant to set it off against the plaintiff's claim (o); and must describe the debt intended to be off set off with the same certainty as in a declaration for the like demand (p). [ *575 ] With respect to notices of set-off, it has been observed, "that they should be almost as certain as declarations ;" (q) and therefore when the notice of (f) 2 Geo. 2, c. 22, s. 13. (g) 1 Starkie, 311; 5 M. & Sel. 164; 2 Chit. Rep. 388, S. C.; Selw. N. P. 6th edit. 535, acc.; but see Bul. N. P. 181; Barnes, 191. (h) R. & M. 413; 2 C. & P. 310, S. C.; 6 Esp. Rep. 50; Duncan v. Grant, 1 Cr. M. & Ros. 383, S. P.; 4 Tyr. 318, 818; 2 Dowl. 683, S. C. (i) Bosanquet's Rules, 52, note 50; Duncan v. Grant, 1 Crom. M. & Ros. 283; 2 Dowl. 683; 4 Tyr. 816, S. C. Sed quære, the notice of set-off was given by statute, and Reg. Gen. Hil. T. 4 W. 4, contains no express regulation to take it away. tague, 61. To assumpsit by assignees for (m) 4 Car. & P. 332. (n) Montag. 61, in notis; and see forms, (P) See-the forms of pleas and notices of (1) Bul. N. P. 179; Selw. N. P. 4th ed. (k) Ante, 57 v; Id. note (x). † See American Editor's Preface. VII. PLEAS set-off was in these words, "Take notice, you are indebted to me for the OF SET-OFF. use and occupation of a house for a long time held and enjoyed, and now setting off. lately elapsed," and the defendant attempted to give in evidence a demand for rent due on a lease under seal, it was held that as the lease was not mentioned in the notice, such evidence was inadmissible (r). But where the demand would have been recoverable under the common money counts in a declaration, the amount may be set off under a similar description of the debt, however particular the circumstances may have been (8). A plea of set-off so much resembles a declaration, that two parts of a plea of setoff, stating distinct debts, are considered as two counts in a declaration, and if one part be good, a demurrer for the mispleading in the other part must be confined to the defective statement, and a general demurrer to the whole is not sustainable (t); though we have seen, that in general if one part of a plea in bar be bad, the whole is insufficient (u). So, in a plea of set-off, an imperfect statement of one debt intended to be set off, will not prejudice a sufficient allegation of another ground of set-off. To the plea of set-off the plaintiff may reply; or to answer to the notice of set-off may, at the trial, give in evidence the statute of limitations (x); but if both the demands of the plaintiff and defendant accrued more than six years before the time of pleading and the plaintiff issued process to prevent the statute of limitations affecting his demand, it will equally prevent the statute from barring the defendant's set-off, although the latter issued no process (y). The statute of limitations cannot be relied upon under the usual replication of nil debet to the plea of set-off (z). When the defendant has a cross demand against the plaintiff, of which he gives notice, put does not offer any evidence on the trial in support of it, the plaintiff may either take a verdict for the whole sum he proves to be due to him, subject to be reduced to the sum really due on a balance of accounts, if the defendant will afterwards enter into a rule not to sue for the debt intended to be set off, or he may take a verdict for the smaller [576] sum, with special indorsement on the postea, as a foundation for the Court to order a stay of proceedings, if another action should be brought for the amount of the set-off (a). costs Of setting Besides these modes of deduction, in cases of connected accounts at off judg- common law, and of set-off and mutual credit in cases of bankruptcy, of ments and which we have seen the defendant may avail himself as a matter of right against in defence of the action, opposite demands, as well for debts as for costs, each other founded on cross judgments, may, by the practice of the Court, in many cases, be set off against each other on a summary application to the Court; plication. but this is rather a matter of practice than of pleading, and therefore it will suffice to refer to the practical works on the subject (b). on sum mary ap (u) Ante, 546, 567. (y) 2 Esp. Rep. 569; 6 T. R. 189; 2 (a) 1 Campb. 252; 1 Chit. R. 178. (x) 2 Stra. 1271; Bul. N. P. 180. See of Set-off, 5 to 15; 6 Taunt. 176; 1 Chitty's ante, 573, note (d). Gen. Prac. 667. CHAPTER VIII. Of Replications. GENERAL TIONS. BEFORE the plaintiff replies or demurs to the plea, he should consider OBSERVAwhether or not he may treat it as a nullity, and sign judgment with or withSteps to be out leave of the Court, as on account of the plea being such a description taken be of sham plea, that the Court will not permit to be pleaded (a), or as being fore replytotally inappropriate to the form of action (b). If several pleas be plead- ing. ed, it will be material to consider whether some of them are not so wholly inconsistent with the rest, that the Court will on application restrain the defendant from pleading all of them (c). Sometimes it becomes necessary to apply to the Court to set aside the plea, or one or more of several pleas, as having been pleaded contrary to good faith, &c.; as where the defendant pleads a release, fraudulently given by a nominal plaintiff to the prejudice of the real claimant (d). And it was frequently important, where a special plea was pleaded in the King's Bench, to rule the defendant to abide by his plea, in order to prevent him, when not under terms of pleading issuably, from striking out his special plea and subsequent pleadings when the paper-book was delivered to him and returning it with the same general issue, a mode of obtaining time formerly very unfairly practised (e). But such a rule was rendered unnecessary by Reg. Gen. Hil. T. 2 W. 4,† reg. 46, which orders that a defendant shall not be allowed to waive his plea without leave of a judge for that purpose, and which will not be granted unless justice require (ƒ). It is sometimes necessary to apply to the Court of Chancery to prevent the defendant from relying on a plea, as where the statute of limitations is pleaded, and the plaintiff did not sue before in consequence of a bill in equity having been filed and injunction obtained by the defendant (g). Of plain. If the plaintiff perceive that he cannot support his action to any extent, tiff's Dishe should either obtain leave to discontinue (i), or he may enter a nolle continu prosequi as to the whole or a part of the cause of action (k) (1), unless Nolle (a) Ante, 541. (b) As to nil debet in assumpsit, &c. see ante, 521. (c) Ante, 521; 2 M. & P. 19; 5 Bing. 12, S. C.; 2 M. & P. 105; 5 Bing. 42, S. Č.; 6 Id. 197. (d) I B. & P. 447; Moore, 617; 1 Y. & J. 362; 1 Campb. 392; 1 Chit. Rep. 390, and notes; see further, Tidd, 9th edit. 677; fraudulent release by one of several plaintiffs, 1 Y. & J. 362; 1 Chit. Rep. 390. (e) See Tidd, 9th edit. 673; in C. P. the ing, and prosequi defendant could not waive his plea after the (h)., (f) Jervis's Rules, 54, note (v). (h) See 3 Chitty's Gen. Prac. 739. (k) Tidd, 9th ed. 681; see the form, post, (1) Bell v. Hutchinson, 2 M'Cord, 409; Lambert v. Sanford, 2 Blackf. 137. Where one co-defendant pleads infancy, the plaintiff may enter a nolle prosequi as to him, and proceed to judgment against the other defendants. Hartness v. Thompson, 5 John. 160; Woodward v. Newhall, 1 Pick. 500; Cutts v. Gordon, 13 Maine, 474; Judson v. Gibbons, 5 Wendell, 228, 229; Walmsley v. Lindenberger, 2 Rand, 478. Vide Hughes v. Moore, 7 Cranch, 565. To entitle one to have the benefit of the proviso of the statute of limitations in favor of infants, &c. the infancy and bringing of the suit within the time limited after disability removed, should be pleaded specially. Hyde v. Stone, 7 Wend. 354; Palister v. Little, 6 Greenl. 351, 352. [578] GENERAL there has been a demurrer for misjoinder (1). Where there are several OBSERVA defendants in an action for a tort, or if in an action ex contractu, the plea TIONS, of one of the defendants is merely in his particular discharge, as bankrupt What answers to the plea cy, &c. the plaintiff may enter a nolle prosequi as to him (m). So the plaintiff might enter set processus or cassetur billa vel breve (n). The points relating to discontinuing the action (o) and entering a nolle prosequi, &c. (p) are fully treated of in the Books of Practice, As the replication is in general influenced by the plea, and most frequently denies it, the pleader has not often much difficulty in deciding the plain- what replication he should adopt. If the plea does not profess to answer the whole action, and leaves a part unanswered, the plaintiff should sign judgment pro tanto (q). And if a plea do not cover the whole of alleg ed trespasses, the plaintiff is entitled on proof of part to a verdict pro tanto, and need not new assign. tiff may reply, When the plea properly concludes to the country, which we have seen can only be when the allegations in the declaration have merely been traversed or denied, then the plaintiff cannot in general reply otherwise than by adding what is termed the imiliter (r), but when the plea has introduced new matter and has therefore concluded with a verification, and the plaintiff does not demur, the replication must then either, first, insist that the defendant could not so plead by showing matter, of estoppel; or secondly, may traverse or deny the truth of the matter alleged in the plea either in whole or in part (1); in the first case by a general replication de injuria, in the second by a denial of a part, according to the facts of the particular case; or thirdly, the replication may confess and avoid the plea; in which case, as will be fully explained when we consider the qualities of replications in general, the truth of the matter alleged in the plea must be admit ted; or fourthly, in the case of an evasive plea may new assign the cause of action (2). And though at common law a replication cannot be double, or contain two or more answers to the same plea, and the statute 4 Ann. c. 16, does not extend to replications, (except in the instance of a plea in bar to an avowry in replevin, which is in the nature of a replication), yet the [579] plaintiff in many cases has an election of different replications; thus if infancy be pleaded in assumpsit, the plaintiff may reply, either that the defendant was of age, or that the goods, &c. were necessaries, or that the defendant after he came of age ratified and confirmed the promise; or he may reply as to part of his demand, that it was for necessaries, and to other part, that the defendant was of full age at the time of the contract, and to the residue, that he confirmed it after he came of age. So, if an ex (2) 1 Hen. Bla. 108; 1 Saund. 285, n. 5; 207, note 2; 2 M. & Sel. 23, 144. (m) Ante, 567, Tidd, 9th ed. 682. (p) Tidd, 9th edit. 681 to 683; 1 Saund. (4) Bush v. Parker, 1 Bing. N. C. 72. (r) Com. Dig. Pleader, R. 1. See observations on the similiter, Boote's Suit at Law, 103, note.* If a defendant at the end of his plea concluding to the country, add the, &c. that may supply the want of a formal similiter, 6 Car. & P. 712. (1) The facts of the plea should be traversed by the replication, unless matter in avoidance is set up, and the issue must be taken on the material allegations. U. States v. Bu, ford, 3 Peters, 31. The replications must not depart from the declaration in any material matter. Lindsay v. Jamison, 4 M'Cord, 93; Collins v. Waggoner, Breese, 96. (2) Gaylord v. Van Loan, 15 Wend. 312, (3) De Kay v. Darrah, 2 Green, 248. |