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 And a demurrer to this plea was withdrawn by advice of the court of Common Pleas (e).

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 lega! rights (ƒ). And in a late case, Tucker v. Tucker (g), the doctrine 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 life-time, 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 life-time, 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

(e) Bottomley v. Brooke, M. 22 G. 3 cited 1 T. R. 621; Rudge v. Birch, M. 25 G. 3., B. R. cited id. 622. See Fenner v. Meares, 2 Bla. R. 1271; Fair v. M'Iver, 16 East, 136; Crosse v. Smith, 1 M. & Sel. 545, 556; Morrison v. Parsons, 2 Taunt. 412; Jarvis v. Chapple, 2 Chitty R. 387. In Wake v. Tinkler, 16 East, 38, Lord Ellenborough said, he was more inclined to restrain, than to extend, the 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 over-ruled 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 Bottomley 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. (f) Wakev. Tinkler, 16 East, 36. (g) 4 B. & Ad. 745.

entitled (h). 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 (i). 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 B. against the price of the goods of A. (j).

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 them as if such were the fact, the principal cannot sue for the price, without giving the purchaser the benefit of any set-off he may have acquired against the agent individually, in ignorance of his true character, and under circumstances not calculated to raise a doubt in the mind of a reasonable person that the agent was not the party beneficially entitled (k).

A town agent, an attorney, sued by a client of his country principal, for the recovery of money received by the town agent, in a particular cause, has no right to deduct from such money the general balance due to him from the country attorney's principal; but only the costs in the particular suit conducted by him (the town agent) for the client, in which the money was recovered (1).

Of Set-off in case of Bankruptcy.

In the case of a bankruptcy there is a particular statute which extends the law of set-off to mutual credit between the parties.

(h) Ante,133,185. 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.

(i) 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.

(j) Coppin v. Craig.

(k) Ante, 180, 183; George v. Claggett, Peake's Add. C. 131. The vendee in the above instance may plead the set-off specially; Carr v. Hinchcliff, 4 B. & C. 547; 7 D. & R. 42, S. C And it would seem that the new rules on pleading render it necessary to plead the matter specially, it being in confession and avoidance.

(1) Moody v. Spencer, 2 D. & R. 6; White v. Royal Exchange Assurance. 7 Moore, 249; 1 Bing. 20, S. C.

The statute 6 Geo. 4, c. 16, s. 50, enacts, "that where there has been mutual credit given by the bankrupt and any other person, or where there are mutual debts between the bankrupt and any other person, the commissioners shall state the account between them; and one debt or demand may be set against 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 (m); and every debt or demand hereby made proveable 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."

The holder of a bill or note of the bankrupt is entitled to credit for the amount against a debt due from him to the estate, although he did not take up the instrument until after the bankruptcy, provided he held it at any time before the bankruptcy occurred (n).

In general it must be shown by a defendant, sued by the assignees, and claiming credit in respect of a bill or note of the bankrupt, that he, the defendant, held the instrument before the act of bankruptcy (0), or, if defendant had no notice thereof, before the fiat was issued. And where A., the holder of a bill, returned it to his indorser before the bankruptcy of the acceptor,

(m) It has been held, upon the particular wording of the act, that in an action by an assignee, a set-off or mutual credit may be given in evidence under the general issue; see Thompson v. Freeman, 1 T. R. 155: and in Wells v. Crofts, 4 C. & P. 332, it was held that a set-off as to part, may in such action be given in evidence under non-assumpsit although a tender is pleaded. The 5 G. 2, c. 30, s. 28, was framed in the same terms as the above enactment, with respect to the balance only being the debt. It was usual, however, to plead or give notice of set-off, in an action at the suit of the assignees of a bankrupt; and the doing so afforded an answer to an argument which might otherwise have been reasonably urged at the trial,— that the plaintiff was taken by surprise. And it seems now to be necessary to

plead specially under the new Rules on Pleading which mention "set-off and mutual credit" as matters to be pleaded in confession and avoidance.

(n) Collins v. Jones, 10 B. & C. 777; Chitty jr., B. 1493, S. C.; Bolland v. Nash, 8 B. & C. 105; Chitty jr., B. 1381, S. C., overruling Exp. Hale, 3 Ves. 304; Chitty, jr. B. 574, S. C. See some late cases as to mutual credit; Key v. Flint, 8 Taunt. 21; 1 Swans. 30; Chitty jr. B. 1000, S. C.; Exp. Wagstaff, 13 Ves. 65; Chitty, jr., B.732, S.C.; Buchanan v. Findlay, 9 B. & C. 744; Chitty jr., B. 1441, S. C.; Rose v. Sims, 1 B. & Ad. 521; Chitty, Jr. B. 1510, S. C.; Dickson v. Cass, 1 B. & Ad. 343; Chitty, jr. B. 1502, S. C.

(o) See id.; Dickson v. Evans, 6 T. R. 57.

and entirely closed the account and transaction as to such bill with such indorser; it was held, in an action by the assignees of the acceptor against A., that the latter could not, by taking back the bill from the indorser, for the purpose of claiming credit for the amount, set off the same against a debt due from him to the bankrupt before his bankruptcy (p).

Where the set-off is upon a bond, it must be specially pleaded in bar, and the plea must aver how much is really due thereon for principal and interest (q). The plaintiff, in his replication, may either deny the bond, by pleading non est factum, or may specially show a discharge thereof; or he may traverse that he owes so much thereon as is stated in the plea; and this traverse is good, although the sum alleged to be due be stated in the plea under a videlicet (r).

Of Pleading, or giving Notice of Set-off, &c.

In town causes it is usual and advisable to give notice (s) of set-off; as the service of the notice can be readily proved, and the expense of pleading several matters is thus avoided. But in country causes, it is customary, and sometimes more prudent, to plead the set-off, on account of the trouble, risk, and expense, of proving the service of a notice of set-off.

A notice of set-off cannot be effectually given with a plea which is not a general issue; as with a plea of non est factum in an action of covenant (t): nor where there is any other plea than the general issue on the record (u).

It is a rule that one plea cannot be used as evidence by the plaintiff to prove a fact denied in another; and as a notice of set-off is in the nature of a plea, it follows that neither such

(p) Belcher v. Jones, Mich. Term. C. P. M. S.; Fair v. M'Iver, 16 East, 130.

(q) Ante, 658; 3 Chitty Pl. 5th ed. 968.

(r) Symmons v. Knox, 3 T. R. 55; Grimwood v. Barrit, 6 T. R. 460.

(s) The notice should be as certain as a plea or declaration; Fowler v. Jones, Bul. N. P. 179. See the forms of a plea, and notice of set-off, 3 Chitty, Pl. 5th ed. 931 a., 932. And it is said to have been decided, that under a setoff for money had and received, the

v.

defendant cannot give in evidence an over-payment to the plaintiff; Hampton Jarratt, 2 Esp. R. 560, coram Eyre, C. J.; sed quære. Under a set-off for money paid for plaintiff, the defendant may prove payment of bills of exchange for the plaintiff at his request; Fletcher v. Lee, coram Lord Ellenborough, C. J., Sittings after Michaelmas Term, 1817; 2 Stark. Ev. 2nd ed. 726.

(t) Aldershaw v. Thompson, 1 Stark. R. 311; 5 M. & Sel. 164, S. C.

(u) Webber v. Venn, 2 C. & P.310; Ry. & M. 413, S. C.

notice, nor the particulars of set-off, can be called in aid by the plaintiff to support his debt; the same being denied by the general issue (x).

In general, the defendant must adduce the same evidence in support of a set-off, as he would be bound to produce, if he were suing for the recovery of the debt claimed to be due to him.

Proof of the delivery and payment to the plaintiff, of a check on the defendant's bankers, is not sufficient evidence of a debt in order to support a set-off, unless it be shown upon what consideration, and under what circumstances, the check was given (y). Where there are cross demands, and the defendant pleads a setoff, the plaintiff is not obliged to prove the whole of his account in the first instance, but may prove only the balance which he claims; and after the defendant has proved his set-off, the plaintiff may prove other parts of his account, to show that a larger sum was due (z).

Where there is a set-off against the plaintiff's demand, of which the defendant gives notice, but he does not appear at the trial to offer evidence 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, it is said, he may take a verdict for the smaller sum, with a 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).

The Court of Conscience Acts do not apply to cases where the debt, being originally above the limited amount, is reduced under it by means of a set-off (b). But it has been held, upon the London Act, that if the plaintiff in assumpsit recover less than 51. upon the balance of an account containing items on both sides, the defendant is entitled to enter a suggestion on the roll to deprive the plaintiff of his costs (c).

(x) Harrington v. Macmorris, 5 Taunt. 282; Miller v. Johnson, 2 Esp. R. 602.

(y) Aubert v. Walsh, 4 Taunt. 293; see further, ante, 580.

(z) Williams v. Davies, 1 C. & Mees. 464.

(a) Laing v. Chatham, 1 Campb. 252; Chapman v. Drunning, 1 Chitt. R. 178; Tidd. 8th ed. 721, 9th ed. 668.

(b) Pitts v. Carpenter, Stra. 1191; Fitzpatrick v. Pickering, 2 Wils. 68; M'Collam v. Carr, 1 B. & P. 223; Cook v. Johnson, 2 Price, 19; Gobed v. Birt, 2 Chitt. R. 394; Cottle v. Langman, 9 Moore, 625.

(c) Fomin v. Oswell, 1 M. & Sel. 393; and see Fleming v. Davis, 5 D. & R. 371.