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 shall be brought, or the debt intended to be set against the same, 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 shown how much is justly due on either side; and in case the plaintiff shall recover in any such action or suit, judgment shall be entered for no more than shall appear to be justly due to the plaintiff, after one debt being set against the other as aforesaid."

As to the cases in which a set-off is allowed under the preceding statutes, it must be observed,

1. That the debts sued for, and the debts intended to be set off, must be mutual (d), and due in the same right. Hence a joint debt cannot be set against a separate demand, nor a separate debt (e) against a joint demand; but a debt due to the defendant, as surviving partner, may be set against a demand on defendant in his own right (f); and e converso, a debt due from the plaintiff, as surviving partner, may be set against a debt due from defendant to the plaintiff in his own right (g). A defendant, sued as executor or administrator, cannot set off a debt due to the defendant personally, nor can a person who is sued for his own debt set off what is due to him as executor or administrator. The statute 2 Geo. II. c. 22, s. 13, says, if either party sues or is 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 part of the statute is confined to cases where the party sues or is sued as executor or administrator. Hence where an executor sues for a cause of action arising after the death of the testator, the defendant cannot set off a debt due to him from the testator: A. having been appointed by B., his attorney, to receive his rents (h), did, after his death, receive rent arrear in B.'s life-time; the executrix of B. brought an action against A. for the money in her own name, not naming herself executrix; the defendant gave notice to set off a debt due to him from the testator, which was not allowed at the trial, because the suit not being as executor, the case is not within the statute. court of C. B., on a case made, concurred in opinion with the judge who tried the cause. The same rule holds where the plaintiff declares as executor, if the cause of action arose after the death of the testator. In assumpsit by the plaintiff, as executor (i), for goods sold and delivered to the defendant by the plaintiff, as executor, the

58.

(d) See Morley v. Inglis, 4 Bingh. N. C.

(e) France and Hill v. White and Williams, 6 Bingh. N. C. 33.

(f) Slipper v. Stidstone, 6 T. R. 493. (g) French v. Andrade, 6 T. R. 582.

The

(h) Shipman v. Thompson, Willes, 103, and Bull. N. P. 180.

(i) Kilvington, Executor, v. Stevenson, cited by Erskine from Yates's MSS. in Teggelmeyer v. Lumley.

defendant pleaded a set-off for a debt due from the testator to the defendant. On demurrer, the court held the plea bad: for to allow a set-off in this case, would be altering the course of distribution (k) (85). A guaranty cannot be the subject of set-off (1).

2. A debt barred by the statute of limitations cannot be set off. If such debt be pleaded in bar to the action, the plaintiff may reply the statute of limitations (m).

3. Where either of the debts accrues by reason of a penalty, the debt intended to be set off must be pleaded in bar, and the defendant in his plea must aver what is really due (n).

4. The court, under the statutes of set-off, can take notice of an interest at law (0) only.

Under the operation of the new rules, a set-off must now be pleaded specially, and cannot, as formerly, be given in evidence under a notice of set-off; for although it was argued (in Graham v. Partridge) (p), that the judges had no power to make the rule they did on this subject, it was determined that the proviso in stat. 3 & 4 Will. IV. c. 42, s. 1, (which restrains the judges from making any rule which shall have the effect of depriving any person of the power of pleading the general issue, and giving the special matter in evidence, in any case wherein he now is or hereafter shall be entitled to do so by virtue of any act of parliament,) did not apply to the defence under the statute of set-off, which (unlike the cases in which the legislature have afforded protection to magistrates and other persons acting in the discharge of public duties) applies generally to all the queen's subjects.

(*) Durnford's note, Willes, 264.

(1) Crawford v. Stirling, 4 Esp. 207, recognized in Morley v. Inglis, 4 Bingh. N. C. 72.

(m) Remington v. Stevens, Str. 1271. (n) Stat. 8 Geo. II. c. 24, s. 5.

(0) Per Littledale, J., (denying the authority of Bottomley v. Brook, 1 T. R. 622,) in Tucker v. Tucker, 4 B. & Ad. 751. (p) Graham v. Partridge, 1 M. & W.

395.

(85) So if the cause of action arises partly in time of testator and partly in time of executor, although the plaintiff declares as executor, yet defendant cannot set off a debt due from the testator to him. In covenant by plaintiffs as executors*, for rent arrear in the lifetime of testator, and also since his death, the defendant at the trial before Lord Mansfield, at the sitting after Easter term, 25 Geo. III. set off a debt due from the testator to him; and the plaintiffs were nonsuited. Erskine moved for a new trial, on the ground that this debt could not be set off in this case, and cited Shipman v. Thompson, Bull. N. P. 180; Kilvington, Executor, v. Stevenson, from a MS. of Yates, J., and Ridout and another, Assignees, v. Brough, Cowp. 133. Lord Mansfield, C. J., said, that he was satisfied on the point on the authority of Kilvington v. Stevenson, and made the rule absolute.

*Teggetmeyer and another, Executors, v. Lumley, B. R. T. 25 Geo. III., reported in Durnford's note to Hutchinson v. Sturges, Willes, 264.

By R. G. T. T. 1 Will. IV. No. 6, particulars (if any) of defendant's set-off shall be annexed by plaintiff's attorney to record at the time it is entered with judge's marshal.

An insurance-broker is only entitled to receive for the assured, from the underwriter, a payment in money: hence in the settlement of a particular loss, a custom to set off the general balance due from the broker to the underwriter cannot be supported (q). The averment of what is really due, in cases where the debt accrues by reason of a penalty, has been holden to be traversable (r). If an agreement is entered into for the performance of covenants, with a penalty, and the covenants are broken, the penalty cannot be set off: To assumpsit for money lent (s), the defendant pleaded articles of agreement with mutual covenants in a penalty for performance, and showed a breach whereby the penalty became due, and offered to set off the same; on demurrer, the court held this plea not within the statute; Lord Mansfield, C. J., observing, that it was contrary to the intention of the acts, that the penalty should be admitted to be set off, when perhaps a very small sum was due for such damages as the defendant had actually sustained. A set-off reducing the plaintiff's demand under 40s. will not affect the jurisdiction of the superior court, so as to entitle the defendant to enter a suggestion on the roll, in order to obtain costs, either under stat. 3 Jac. I. c. 15, s. 4 (t), or under stat. 23 Geo. II. c. 33, s. 19 (u), if it appear that a sum exceeding 40s. was due at the time of action brought (86). With respect, however, to inferior courts, it is a general rule, that every part of the cause of action should appear to be within the jurisdiction of the court (x). Where, therefore, part

Todd v. Reid, 4 B. & A. 210.

(r) Symmons v. Knox, 3 T. R. 65. (8) Nedriff v. Hogan, 2 Burr. 1024, and Bull. N. P. 180.

(t) Pitts v. Carpenter, Str. 1191, and

1 Wils. 19.

(u) Gross v. Fisher, 3 Wils. 48.
(x) See ante, p. 102.

(86) The language of the two statutes is different. By the statute of James, if it appear to the judge that the debt to be recovered does not amount to 40s. the defendant shall have costs. By the statute of George, the defendant shall recover double costs, if the jury, upon the trial of the cause, find the damages for the plaintiff under 40s., unless the judge certify that, 1, the freehold, or 2, the title of the plaintiff's land, or 3, an act of bankruptcy, principally came in question. It does not appear that the court, in Gross v. Fisher, adverted to this difference. N. Under the Court of Requests Act, for Southwark, 22 Geo. II. c. 47, S. 6, if the debt which was originally above 40s. be reduced below 40s. by partpayment before action brought, the defendant will be permitted to enter a suggestion. Clark v. Askew, 8 East, 28. So under the London Court of Requests Act, if the debt be reduced by part-payment below 57. before action brought, the defendant will be permitted to enter a suggestion. Horn v. Hughes, 8 East, 347.

of the cause of action appears to have arisen out of such jurisdiction, the court will not allow (t) a suggestion to be entered.

8. Tender.

8. Tender. To an action of assumpsit, the defendant may plead non assumpsit as to part of the plaintiff's demand, and a tender before the commencement of the plaintiff's suit as to the rest; but the defendant will not be permitted to plead non assumpsit to the whole declaration, and a tender as to part (u); because, if the general issue should be found for the defendant, it would then appear on the record, that nothing was due, although the defendant by his plea of tender had admitted something to be due. A tender may be pleaded to a quantum meruit, although the demand is uncertain. Johnson v. Lancaster, Str. 576.

What shall be a good Tender.-A tender must be (x) of a specific sum on a specific account, and if it be upon a condition to which the creditor has a right to object, it is not a good tender. Thus an offer to pay a sum of money with a condition that it shall be accepted as the whole balance due, when a larger sum is claimed, does not amount to a legal tender of the sum offered to be paid (y). In order to sustain a plea of tender, it is not necessary in all cases to prove the actual production of money, in monies numbered; it will be sufficient to show that the defendant was in a present condition to substantiate his offer (z), and that the plaintiff dispensed with the production of the money; but there must be either an actual offer of the money produced, or the production of it must be dispensed with by the express declaration or equivalent act of the creditor. Where there is a dispute as to the amount of the demand, the plaintiff, by objecting to the quantum, may dispense with a tender of the specific sum; there should, however, be an offer to pay by producing the money, unless the plaintiff dispenses with the tender, by expressly saying, that the defendant need not produce the money, for he would not accept it; for though the plaintiff might refuse the money at first, yet if he saw it produced, he might be induced to accept it (a). If a man tender more than he ought to pay, it is good, for omne majus continet in se minus, and the other ought to accept so much of it as is due to him (b). Hence, a proof of a tender of 201. 9s. 6d. in bank notes and silver was holden (c) sufficient to

(t) Thomv. Chinnock, 1 Man. & Gr. 216. (u) Dougall v. Bowman, C. B. M. 11 Geo. III.; 3 Wils. 145, and 2 Bl. Rep. 723; Anon. C. B. M. 40 Geo. III. MSS.; Maclellan v. Howard, 4 T. R. 194, S. P. (x) Per Maule, B., in Bevans v. Rees, 5 M. & W. 306.

(y) Evans v. Judkins, 4 Campb. 156. See Strong v. Harvey, 3 Bingh. 304.

(z) Thomas v. Evans, 10 East, 101. (a) Per Kenyon, C. J., Middlesex Sittings, 4 Esp. N. P. C. 68. See also Finch v. Brook, 1 Bingh. N. C. 253.

(b) Third resolution in Wade's case, 5 Rep. 115, a, recognized per Cur. in Dean v. James, 4 B. & Ad. 547. See also Bevans v. Rees, 5 M. & W. 306. (c) Dean v. James, ubi sup.

support a plea of tender of 201. If a debtor tenders (d) a larger sum than is due, and asks change, this will be a good tender, if the creditor does not object to it on that account, but only demands a larger sum. There is not any occasion to produce the money, if the creditor refuses to receive it on account of more being due. But where defendant, being indebted to the plaintiff in 31. 10s., produced to him a 51. bank note, and desired him to take 31. 10s. out of that, it was holden (e), that it was not a good tender; for if I tender a man twenty guineas in the current coin of the realm, this may be a very good tender for fifteen, for he has only to select so much, and restore me the residue. But a tender in bank notes is quite different. In that case the tender may be made in such a way that it is physically impossible for the creditor to take what is due and restore the difference. To an action of assumpsit (f), the defendant pleaded a tender of 107.; the evidence was, that the defendant, having been employed as attorney for the plaintiff, had in that character received for his use 107. in part payment, and in going from home for a time, left the 107. with his clerk there. Some time after the plaintiff called and demanded 167. 8s. 11d. which he said he supposed Evans had received; when the clerk told him that Evans was gone from home, and had left with him 10l. to give to the plaintiff when he called. The plaintiff said he would not receive the 107., nor any thing less than his whole demand. The clerk did not offer the 101. The court were of opinion the evidence was insufficient; Lord Ellenborough, C. J., observing, "It is expressly stated, that the clerk did not offer the 107. He only talked about having had 107. left with him to give to the plaintiff when he called, without making any offer of it, which is not a tender in law."

If A., B., and C. have a joint demand on D., and C. has a separate demand on D. (g), and D. offer A. to pay both the debts, which A. refuses, without objecting to the form of the tender on account of his being entitled only to the joint demand; D. may plead this tender in bar of an action on the joint demand; but it ought to be pleaded as a tender to A., B., and C. A tender of foreign money, made current by royal proclamation, is equivalent to a tender of lawful money of England (h).

A tender of money to an agent authorized to receive payment (i), is a good tender to the creditor himself. It must be made (k) either to the creditor himself, or to an agent authorized to give a receipt for the debt.

(d) Per Kenyon, C. J., in Black v. Smith, Peake's N. P. C. 88.

(e) Per Le Blanc, J., in Betterbee v. Davis, 3 Campb. 70. See also Robinson v. Cook, 6 Taunt. 336.

(f) Thomas v. Evans, 10 East, 101. (g) Douglas v. Patrick, 3 T. R. 683.

(h) 5 Rep. 114, b.

(i) Goodland v. Blewitt, 1 Campb. 477. See also Moffat v. Parsons, 5 Taunt. 307.

(k) Per Parke, B., Kirton v. Braithwaite, 1 M. & W. 313.