have disposed of his business, or unless he shall have become bankrupt or King's Bench. insolvent, the said William Biddlecombe shall not enter up judgment on his warrant of attorney, but otherwise it shall remain in full force. hands of the parties. v. Witness the BIDDLECOMBE On the 8th July, 1835, the stock in trade and effects of the defendant were taken in execution under a fi. fa. issued at the suit of the plaintiff on a judgment entered upon the warrant of attorney. On the 14th July an order was made by Williams, J. for setting aside the judgment and execution, on the ground, that although the defendant was not in solvent circumstances, he had never disposed of his business, become bankrupt, or taken the benefit of the Insolvent Debtors' Act, or made any declaration of insolvency. A rule was obtained to show cause why the order of Williams, J. should not be set aside, upon affidavits which showed that in several conversations the defendant had admitted that he could not pay twenty shillings in the pound, if he were called upon to make immediate payments to all his creditors, and that his circumstances were generally embarrassed. Hodges showed cause.-As it is admitted that the defendant had not either disposed of his business or become bankrupt, the question is, whether he can be said to have become insolvent within the only other alternative of the agreement, so as to authorize the plaintiff in signing judgment, and issuing execution. It may be true, that as a general proposition, insolvency, as respects a trader, means that he is not in a situation to make his payments as usual; Bayley v. Schofield (a), Cutler v. Sanger (b). The question here, however, is, what is the meaning to be attached to the word "insolvent" in this agreement, standing as it does in close connection with bankruptcy ; it can only mean having taken the benefit of the Act for the Relief of Insolvent Debtors. In re Birmingham Benefit Society (c) a similar construction was put on the word when used in a statute. The 33 Geo. 3, c. 54, s. 10, enacted, that if any person holding office should become bankrupt or insolvent, his assignees should pay all sums due, &c. The Vice-Chancellor considered, that in the statute the legislature could only mean, by the expression" insolvent," a person who had availed himself of the Act, and accordingly dismissed the petition with costs. The same interpretation must be put upon the agreement in the present case; and if so, the state of things which authorized the signing of the judgment and issuing of the execution never occurred. The order for setting them aside must therefore stand. Erle, in support of the rule, relied upon Parker v. Gossage (d). Lord DENMAN, C. J.-I think we should not be justified in restraining the meaning of the word "insolvent" in the agreement to so narrow a compass as the actual taking the benefit of the Insolvent Act. The expression must have a wider interpretation; and I am therefore of opinion, BOND. King's Bench. that the plaintiff has not violated the stipulation contained in the agreement. The rule must accordingly be absolute for setting aside the order of the BIDDLECOMBE. learned judge. v. BOND. PATTESON, J. and COLERIDGE, J. concurred. Rule absolute. 1. Indebitatus assumpsit for work and labour, money paid, and on an account stated. Plea, as to 201., parcel of the monies in the first two counts mentioned, and as the money in the last count men tioned, that the said two sums were the same debt, and then payment in satisfaction of the 201.:-Held, on special demurrer, that this plea was how much of the 201. due on the account stated was applicable to the count for MEE and an'. v. TOMLINSON. ; INDEBITATUS ASSUMPSIT for work and labour as attornies, money paid, and on an account stated. Each count laid the sum at 2001. Fifth plea, as to the sum of 201., parcel of the said sum of 56l. 11s. 8d., parcel of the monies in the first two counts mentioned; and as to the said sum of 20l., parcel of the said sum of 56l. 11s. 8d., parcel of the said money in the last count mentioned, the defendant says actionem non, because he says, that the to 20%., parcel of said sum of 201., so found to be due to the plaintiff on an account stated, is the same sum of 201., parcel of the monies in the two first counts mentioned and that the said two sums of 201. each are the same debt, and not other and different debts. The defendant then pleaded payment of the sum of 201. in full satisfaction and discharge of the said promises, as far as the same related to the said debt of 201., and of all damages sustained by the plaintiffs by reason of the non-performance thereof, and that the plaintiffs then accepted and received the same, &c.; concluding with a verification and bad for not stating prayer of judgment, if the said plaintiffs ought to have their aforesaid action thereof against him. Seventh plea, as to 177. 17s. 8d., parcel of the said sum of 721. 3s. 9d. in the second plea mentioned, parcel of the said monies in the first and second counts mentioned; and as to the sum of 391. 9s. 8d., work and labour, residue of the said sum of 1117. 13s. 5d. in the first plea firstly mentioned, and to which the second plea is not pleaded; and as to the sum of 177. 17s. 8d., part of the said sum of 22l. 3s. 9d. in the sixth plea mentioned, and parcel of the monies in the last count mentioned; and as to the sum of 391. 9s. 8d., residue of the said sum of 1117. 13s. 5d., in the said first plea secondly above mentioned, to which the said sixth plea is not pleaded, the defendant says actionem non, because, he says, that before and at the time of the commencement of the suit, the plaintiffs were, and from thence hitherto have been, and still are, indebted to the defendant in the sum of 57l. 7s. 4d., for money before then had and received by the plaintiffs to the use of the defendant, and for money found to be due from the plaintiffs to the defendant on an account before then stated between them; which said money, so two counts, which due and owing from the plaintiffs to the defendant, equals the damages sustained by the plaintiffs by reason of the non-performance by the defendant of the promises in the declaration mentioned, so far as they relate to the sums to which this plea is pleaded, as in the introductory part thereof is which the plea is mentioned and set out; of which said money so due and owing to the defendant as aforesaid, he the defendant is ready and willing, and hereby offers to set off and allow the plaintiffs the full amount of the said damages, secundum formam statuti. Special demurrer to the fifth plea, for that the plaintiffs had declared in assumpsit, first, in 2001. for work and labour; secondly, in 2001. and how much to the count for money paid : Held, also, that it was unobjec tionable on ac count of the aver ment of identity, as that averment merely amounted to an allegation as the sums men tioned in the first is allowable by the new rules 2. A plea of set-off of a smaller sum than that to applied, is bad. for money paid; and in 2007. on an account stated; and yet the defendant hath alleged and pleaded, that 201. and 201., part of the three demands, are one debt of 201.; that the defendant hath wrongfully attempted to confine the plaintiffs to one demand; that the said fifth plea is double, in first denying that the causes of action are different, and, secondly, pleading accord and satisfaction; that the accord and satisfaction is in satisfaction of the damages generally, and not of the damages as to the 201., and the accord and satisfaction is pleaded in bar of the cause of action, and not of the whole; nor does the plea show that the residue was a distinct demand or contract, or that it was paid or satisfied; and that the plea does not state in particular to how much of the sum in the second count the fifth plea is pleaded. Special demurrer to the seventh plea, for that the seventh plea is a plea of set-off, and in the introductory part thereof the plea is stated to be as to four several sums, amounting to 1147. 14s. 8d., and yet the set-off is only a demand of 571. 7s. 4d., which is pleaded as equal to the whole, and not to a part, and is set off against the whole. Joinder in demurrer. J. Bayley in support of the demurrer.-The fifth plea is clearly bad on account of the averment of identity. That objection is always valid on special demurrer. The seventh plea enumerates several sums of money, which amount in the whole to 1147. 14s. 8d., as the amount of the sum claimed to which it is pleaded. It then pleads, by way of set-off to the whole of that aggregate sum, a set-off of 571. 7s. 4d. only, which is a lesser sum. Thomas v. Heathorn (a) shows, that the payment of a smaller sum cannot be pleaded in satisfaction of a larger amount: à fortiori, a smaller sum cannot be pleaded by way of set-off against a larger, unless it be restricted as being a plea to a part only. Here, the smaller sum is pleaded to the whole of the larger sum, and the plea is therefore bad. Addison contrà.-The fifth plea is unobjectionable on the ground of there being an averment of identity. It is not averred that the debts are identical, but that the sum of 201., due on the account stated, is due in respect of the same cause of action as the 201. due in respect of the two first counts. Sheldon v. Clipsham (b) is an authority to show that the present form of pleading is good. [Coleridge, J.-There is another objection. The plea admits a sum to be due on the first and second counts, without specifying how much is due on each. How are the plaintiffs to know how much is admitted to be due on one count, and how much on the other?] If that be objectionable, every plea of tender which has hitherto been drawn must be equally bad; yet it has never been thought necessary to specify in a plea of tender how much is tendered in respect of each count; nor can that be necessary in this case. As to the point on the seventh plea, this case is distinguishable from Thomas v. Heathorn. Here, the sum sought to be recovered is the amount of damages sustained by the non-performance of the promise. It is, therefore, sufficient if the sum set off exceeds the amount of those damages, though it may not be sufficient to cover the whole amount claimed. In the case referred to, Holroyd, J. distinctly says, that " a set-off of a smaller sum is sufficient, because a part only may be set off." The (b) Sir T. Raym. 449. (a) 2 Barn. & Cress. 477. King's Bench. MEE บ. TOMLINSON. King's Bench. MEE บ. TOMLINSON. evidence would be precisely the same whether the plea of set-off mentioned only a smaller sum, or a sum equal, or greater in amount. J. Bayley in reply.-The objection to the fifth plea, that it does not specify the amount of the debt claimed in the first and second counts respectively, to which it applies, has not been answered. No argument can be drawn from the mode in which it may have been customary to draw the plea of tender; the propriety of the present course may be discussed when the question is raised. The seventh plea clearly purports to set off a smaller sum against a greater. The argument on the other side rests wholly on taking the expression" damages" only, without reading the whole of the plea. PATTESON, J. (a).-This is an action of assumpsit, and the declaration contains three counts, namely, for work and labour, for money paid, and on an account stated. The fifth and seventh pleas have been demurred to. The fifth plea contains an averment of the identity of several sums of 201. therein mentioned. I at first thought that, on account of this allegation of the identity of the sums claimed in the different counts, the plea was bad. In declarations for trespass, where there have been two counts on different trespasses, such an allegation has always been held ground of substantial objection. But Mr. Addison has satisfied me, from the way in which he puts the case, that the plea is not demurrable here on that ground, for he states that that which is averred here is in effect merely that the sum of 20l., in the first and second counts mentioned, is a debt arising out of the same cause of action as that mentioned in the account stated. Now the new rules have allowed a count on an account stated to be put into a declaration, though with another count on the same cause of action: so that so far there is no objection. But then there are other grounds of demurrer. This objection to the fifth plea might be given up, but another, which is also pointed out as ground for the special demurrer to that plea, is relied on, namely, that the plea does not state to how much of the sum mentioned in the two first counts respectively it is pleaded. It is contended, that it ought to point out specifically how much it is intended to cover in the first count, and how much in the second count. I think that is a good objection, for we must take the cause of action for work and labour, to be different from that for money paid. It is right that the defendant should let the plaintiff know what part of the one, and what part of the other cause of action he pleads to. The only difficulty I have felt has been with reference to the argument on the analogy of the plea of tender, which is said to apply. This mode of pleading a tender depends upon an inveterate practice; but it does not follow, when we come to a new system of pleading, or rather to the revival of the old system, that we should extend this practice to a different part of the system of pleading. On the contrary, it seems to me right, that in a plea of set-off the defendant should distinctly point out to what part of the demand his set-off is meant to apply. This one objection on the fifth plea is quite sufficient to call on us to give judgment for the plaintiffs on that plea: and that being so, I do not think it necessary to enter into the consideration of the other objections applicable to that plea. With respect to the seventh plea, the principal (a) Lord Denman, C. J. was absent. MEE v. objection is, that the plea is pleaded as to a large sum of money, namely, the King's Bench. sum of 114/. 14s. 8d., and the set-off only equals half that amount, alleging that the half is equal to the damages sustained by the plaintiff, so that it is a plea of set-off of a smaller against a larger sum of money, and that too not TOMLINSON. by way of deduction but of equivalent. I have rarely seen such a plea of deduction. The sum stated is immaterial, both in the declaration and in the plea, and generally there is a larger sum stated in the plea than in the declaration. That is to enable the defendant to show what is really due to him, and to enable him to set off what is so due against what is claimed against him. I do not know that it was necessary to say that the sum claimed to be set off exceeded the damages stated in the declaration, for the plea might be in the form of a plea by way of deduction. It may be necessary now perhaps that it should be so, but I have not seen any plea of that kind. Mr. Addison says, that the plea in this case is not inconsistent on the face of it, for he says, though I have to answer a claim of 1147. 14s. 8d., I do not admit that such a claim is good, but I assert that I have a claim of 57l. 7s. 4d., and that that claim is equal to the damages which you have in reality sustained from the breach of my promise." That is certainly a new way of pleading a set-off. The defendant admits, for the purposes of the plea, the facts stated in the declaration, but if he selects a portion of the plaintiffs' demand, it must be taken that he admits the amount there stated to be due, and he should plead a set-off equal in amount to what is thus admitted to be due. If he means to admit only so much as is equal in amount to the amount of his set-off, he should have pleaded it so; otherwise he appears to treat the demand as a demand of unliquidated damages, and then he cannot plead a set-off against unliquidated damages at all. This plea might be good in this way. Suppose that the sum had been stated in the first count, and then that there had been an account stated, he might have pleaded the identity of the sums stated in the two counts, and might have averred that he did not owe the money thus demanded. On the face of this plea, it appears to me that this is an attempt to set off a small sum of money against a larger; and that the averment to support the plea is not equivalent to an averment that no more than the smaller of these sums is due. I have looked into the case of Thomas v. Heathorn, and I am of opinion that the present case falls within the principle of that decision. I do not think that the allegation in this plea can be considered as an averment that no more than 571. 7s. 4d. is due to the plaintiffs, and that the defendant has a set-off to that amount; and I am therefore of opinion that there must be judgment for the plaintiffs on the demurrer to the seventh plea. WILLIAMS, J.—I am of the same opinion. The defendant says, that he admits the sum of 1147. 14s. 8d. to be due as a debt, and then he seeks to extinguish it by setting off a claim of his own for a less sum. He admits, however, that this might be an insufficient answer, but that it is in effect pleading that the damages sustained by the plaintiffs are not equal in amount to more than the smaller sum. If he means the damages in general claimed in the declaration, the payment of this smaller sum would be no discharge at all. If he means the damages really sustained, he should have pleaded that in terms. It seems to me, therefore, that the seventh plea is bad. With respect to the fifth plea, there is one objection to it which is decisive. The |