commencement of the suit, and not to the time of plea pleaded (98). 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 and due in the same right. Hence a joint debt cannot be set against a separate demand, nor a separate debt 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; and e con verso, a debt due from the plaintiff, as surviving partner, may be set against a debt due from the defendant to the plaintiff in his own right. A defendant, sued as executor or administrator, cannot set off a debt due to 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 G. 2. 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. It will be observed, that 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, 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 execu trix; the defendant gave notice to set off a debt due to him y Slipper v. Stidstone, 6 T. R. 493. a Shipman v. Thompson, Willes, 103. z French v. Andrade, 9 T. R. 582. aud Bull. N. P. 180. If (98) If the debt intended to be set off accrued before action brought, the plea of set-off should state, that plaintiff was indebted to the defendant at the commencement of the action. the debt intended to be set off accrued after action brought, and before plea pleaded, then the plea of set-off should be pleaded in the form in which pleas after the last continuance are generally pleaded, viz. that the plaintiff ought not further to have or maintain his action, from the testator, which was not allowed at the trial, because the suit not being as executor, the case is not within the statute. The 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, for goods sold and delivered to the defendant by the plaintiff, as executor, the 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 (99). 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 (100). 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. b Kilvington, executor, v. Stevenson, cited by Erskine from Yates's MSS. in Teggetmeyer v. Lumley. c Durnford's note, Willes, 264. (99) 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 sittings after Easter term, 25 Geo. 3. 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. (100) If such debt be given in evidence on a notice of set off, it may be objected to at the trial. Bull. N. P. 180. * Teggetmeyer and another, executors, v. Lumley, B. R. T. 25 G. 3. reported in Durnford's note to Hutchinson v, Sturges, Willes, 264. In all other cases the defendant may either plead, or give a notice (101) of set-off, 'at his election (102). The ayerment of what is really due, in cases where the debt accrues by reason of a penalty, has been holden to be traversablef, though laid under a videlicet. 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, the defendant pleaded articles of agreement with mutual covenants in a penalty for performance, and shewed 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, f Symmons v. Knox, 3 T. R. 65. h Nedriff v. Hogan, 2 Burr. 1024. and (101) The same certainty is required in this notice as in a declaration. Indebitatus assumpsit for goods sold*: defendant, in order to set off a debt due from the plaintiff to him, gave the following noticeTake notice that you are indebted to me for the use and occupation of a house, for a long time held and enjoyed, and now lately elapsed: Lord Hardwicke C. J. These kind of notices should be almost as certain as declarations. The legislature intended then to be in the nature of cross actions, and they should be expressed with such certainty as to enable plaintiff to make a proper defence to them. Had this been a declaration for the use and occupation of a house, it would certainly have been ill: for it must have shewn the commencement and determination of the occupation. It afterwards appeared that the debt designed to be set off was for rent reserved on lease by indenture, which not being mentioned in the notice, the chief justice said, it would be bad on that account likewise, for had this been mentioned, the plaintiff might possibly have shewn that he was evicted, or some other matter, to avoid the demand. Verdict pro querente. N. The preceding case was decided before the stat. 11 Geo. 2. c. 19. (102) In country causes it is usual to plead a set-off, in order to save the trouble and expense of proving the service of notice. Tidd's Pract. 584. * Fowler v. Jones, Middlesex Sittings after H. T. 8 Geo. 2. coram Hard. wicke C. J. MSS. and Bull. N. P. 179. when perhaps a very small sum was due for such damages as the defendant had actually sustained. It will be proper to remark here, that 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. 1. c. 15. s. 4.', or under stat. 23 G. 2. c. 33. s. 19. if it appear that a sum exceeding 40s, was due at the time of action brought (103), 7. Tender. 7. 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, 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. i Pitts v. Carpenter, Str. 1191. and 1 Wils. 19. 'k Gross v. Fisher, 3 Wils. 48. 1 Dowgall v. Bowman, C. B. M. 11 Geo. 3. 3 Wils. 145. and 2 Bl. Rep. (103) 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 to 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 G. 2. c. 47. s. 6. if the debt which was originally above 40s. be reduced below 40s. by part payment 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, What shall be a good Tender.-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 shew that the defendant was in a present condition to substantiate his offer, and that the plaintiff dispensed with the production of the money (104) 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. To an action of assumpsit", the defendant pleaded a tender of 10. 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 on going from home for a time left the 10l. with his clerk there. Some time after the plaintiff called and demanded 16l. 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 107. 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 10l. 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 101. 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., and D. offer A. to pay him both the debts, which A. refuses, without objecting to the form m Thomas v. Evans, B. R. Trin. 48 G. n Thomas v. Evans, ub. sup. 3. 10 East, 101. o Douglas v. Patrick, 3 T. R. 683. (104) 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 dispeases with the tender by expressly saying, that the defendant need not produce the money as 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. Per Kenyon C. J. Middlesex Sittings, M. T. 42 G. 3. 4 Ésp. N. P. C. 68. "I take it to be clear beyond a doubt, that if the debtor tenders 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 cre ditor refuses to receive it on account of more being due." Per Kenyon C. J. London Sittings, after M. T. 32 G. 3. Peake's N. P. C. 88. |