dence upon the general issue, or pleaded in bar, as the nature of the case shall require; so as at the time of pleading the general issue, where any such debt of the plaintiff, his testator, or intestate, is intended to be insisted on in evidence, notice shall be given of the particular sum or debt so intended to be insisted on, and upon what account it became due, or otherwise such matter shall not be allowed in evidence on such general issue. [But as to notice, see operation of new rules, ante, p. 148.]

Upon the construction of this statute several questions arose : First, Whether a debt on simple contract could be set off in common cases against a specialty debt (31)? 2ndly, If in common cases, whether they could be so set off, where an executor or administrator is plaintiff (32)? and, 3dly, Whether, in the case of a bond, the penalty was to be considered as the debt (33)? To remove these

(31) This question first arose in Stephens v. Lofting, M. 6 Geo. II. C. B. 8 Vin. 462, pl. 31, and cited by Willes, C. J., in Hutchinson v. Sturges, Willes, 262, when the court were of opinion that a simple contract debt could not be pleaded by way of a set-off to a bond. But on error in B. R., Yorke, C. J., expressed a strong opinion to the contrary; Probyn, J., concurred with the C. J.; Price, J., doubted; and Lee, J., did not give any opinion; the decision, however, of another point (see infra, n. (33)) rendered the determination of this question unnecessary at that time. The same question was again agitated in Brown v. Holyoak*, E. 7 Geo. II. C. B. The case was this: In debt for rent † upon a lease by indenture, the defendant pleaded that a greater sum was due from the plaintiff to the defendant, upon a promissory note; after argument, judgment was given for the plaintiff, on the ground that his demand was equal to a specialty, and that a simple contract debt could not be set off against a specialty debt. On error in B. R., the judgment of the Court of Common Pleas was reversed by Lord Hardwicke, C. J., and the court, the day after the stat. 8 Geo. II. c. 24, was passed.

(32) In Kemys v. Betson, 8 Vin. 561, pl. 30, and cited by Willes, C. J., in Hutchinson v. Sturges, Willes, 262, it was holden, in the case of an executor, that simple contract debts could not be set off against debts on specialties; for the debts must be of an equal nature; otherwise such a construction might occasion a devastavit. And in Joy v. Roberts, in the Exchequer, (cited by Willes, C. J., in Hutchinson v. Sturges, Willes, 262,) there was the same resolution.

(33) In debt on a bond for 761. 10s. conditioned for the payment of 381. the defendant pleaded a debt by simple contract of 701. On demurrer, the question was, whether the penalty were the legal debt, so that the money due could not be pleaded against what was really due upon the bond. Judgment for the plaintiff in Č. B. On error in B. R. Yorke, C. J., said, that the penalty of the bond was the legal debt: that one part of the stat. 2 Geo. II. c. 22, s. 13, was to be compared with the other; and, Barnes, 290.

By an administrator, 8 Vin. 562.

Stephens v. Lofting, B. R. M. 7 Geo. II. 2 Barnard. 338.

difficulties, it was enacted and declared by stat. 8 Geo. II. c. 24, s. 5, that, by virtue of "the preceding clause, mutual debts might be set against each other, either by being pleaded in bar, or given in evidence on the general issue (z), in the manner therein mentioned, notwithstanding such debts were deemed in law to be of a different nature; unless in cases where either of the said debts should accrue by reason of a penalty contained in any bond or specialty; and in all cases, where either the debt for which the action is brought, or the debt intended to be set against the same, hath accrued 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 due on either side (34); and in case the plaintiff shall recover in any such action, judgment shall be entered for no more than shall appear to be due to the plaintiff, after one debt being set off against the other as aforesaid." In debt upon a bail-bond, brought by the officer of the Palace Court (a), to whom the defendant had given the bond conditioned for the appearance of A. B. to answer C. D. in a plea of trespass on the case; the defendant pleaded, by way of set-off, a greater sum due to him from the plaintiff, by simple contract. On demurrer, the court gave judgment for the plaintiff; Willes, C. J., (who delivered the opinion of the court,) observing, that as this was not a bond conditioned for the payment of money, the case was not within the stat. 8 Geo. II.; and it was not within the stat. 2 Geo. II. because the plaintiff did not sue in his own right, but in the nature of a trustee for G. D., that it might as well be said, that when a person sued as executor, the defendant might set off a debt from the plaintiff to the defendant, in his own right, as that the defendant could set off in the present case. He added, however, that if this had been a bond to the sheriff, assigned over to the party according to the statute, the court would have thought otherwise; and that the penalty must have been considered as the debt, this not being a case within the stat. 8 Geo. II. To debt on bond

(z) Under the operation of the new cially. See ante, p. 148. rules a set-off must now be pleaded spe- (a) Hutchinson v. Sturges, Willes, 261.

therefore, if the defendant (as he might have done) had pleaded the general issue, and given in evidence part of the plaintiff's demand, and craved to have an allowance of so much, this would not have aided him, for the jury must find the whole, or else that it was not the parties' deed, and they could not sever the debt; so, in like manner, a lesser sum than was demanded by the plaintiff, that is, than the penalty, could not be pleaded. Judgment of C. B. affirmed.

(34) Hence the defendant, in his plea, must aver what is really due; and this averment has been holden to be traversable *, although laid under a videlicet +.

* Symmons v. Knor, 3 T. R. 65.

+ Grimwood v. Barrit, 6 T. R. 460.

conditioned for the payment of an annuity to plaintiff (b), defendant pleaded, that a certain sum only was due to the plaintiff on account of the annuity, and that the plaintiff was indebted to the defendant in a larger sum of money, for money lent, &c., which he claimed to set off; on demurrer, it was adjudged, that this was a case within the stat. 8 Geo. II. c. 24, s. 5, and that the defendant was entitled to set off his debt. To a declaration in debt by assignees of bankrupt for money received by defendant to use of plaintiff's assignees, plea, that bankrupt before his bankruptcy was indebted to defendant in a greater sum upon an account stated between them, and that defendant was willing to allow plaintiffs to set off against such debt the debt claimed in the declaration, was holden (c) ill on de

murrer.

The following rules must be attended to in pleading a set-off:Uncertain damages, or an unliquidated demand, cannot be made the subject of a set-off (d) (35). But if two persons agree to perform certain work in a limited time (e), or to pay a stipulated sum weekly, for such time afterwards as it should remain unfinished, and a bond is prepared in the name of both, but is executed by one only, with condition for the due performance of the work, or the payment of the stipulated sum weekly, such weekly payments are in the nature of liquidated damages, and not by way of penalty, and may be set off by the obligee in an action brought against him by the obligor who executed. 2ndly, A debt barred by the statute of limitations cannot be set off (f); for the remedy, by way of set-off, was intended to supersede the necessity of a cross action; and a debt barred by the statute of limitations cannot be recovered by action. If such debt be pleaded, the plaintiff ought to reply the statute (g). 3dly, The debts sued for, and intended to be set off, must be mutual, and due in the same right (36). A debt due to a person in right of his wife (h), cannot be set off in an action against him on his own bond. Under the statutes of set-off, the court can only take notice of an interest at law (i). As to particulars of setoff, see ante, p. 149.

A plea of set-off to several counts is not divisible; and the plain

(b) Collins v. Collins, 2 Burr. 820.

(c) Groom v. Mealey, 2 Bingh. N. C. 138.

(d) Howlet v. Strickland, 1 Cowp. 56; Weigall v. Waters, 6 T. R. 488.

(e) Fletcher v. Dyche, 2 T. R. 32.
(f) Per Willes, C. J., in Hutchinson v.

Sturges, Willes, 262.

(g) Remington v. Stevens, Str. 1271. (h) Bull. N. P. 179, cites Paynter v. Walker, C. B. E. 4 Geo. III.

(i) Per Littledale, J., Tucker v. Tucker, 4 B. & Ad. 751.

(35) "Debts to be set off must be such as an indebitatus assumpsit will lie for." Per Ashhurst, J., in Howlet v. Strickland, Cowp. 56.

(36) See cases affording an illustration of this rule, under "Plea of Set-off," tit. "Assumpsit," ante, p. 147.

tiff is entitled to a verdict generally, unless the defendant proves a set-off equalling the whole of the plaintiff's aggregate demand (k).

IV. Debt on Bail-bond, p. 570; Stat. 23 Hen. VI. c. 10, p. 570; Assignment of Bail-bond under Stat. 4 Ann. c. 16, p. 575; Declaration by Assignee, p. 576; Of the Pleadings, p. 578 ; Comperuit ad Diem, p. 578; Nul Tiel Record, p. 579.

Ar common law, the sheriff was not obliged to take bail from a defendant arrested upon mesne process, unless he sued out a writ of mainprize; but by stat. 23 Hen. VI. c. 10, it was enacted, "that sheriffs, under-sheriffs, bailiffs of franchises, and other bailiffs (37), should let out of prison all persons by them arrested or being in their custody, by force of any writ, bill, or warrant, in any action personal (38), or by cause of indictment of trespass (39), upon rea

(k) Moore v. Butlin, 7 A. & E. 595; 2 Nev. & P. 436, recognized in Tuck v.

Tuck, 5 M. & W. 109, ante, p. 533.

(37) "This statute does not authorize sheriffs' bailiffs to take obligations for the appearance of persons arrested: from the express mention of bailiffs of franchises, it appears that those officers only are meant, who have the return of process. When, therefore, the process is directed to the sheriff, the indemnity must be to him." Per Buller, J., in Rogers v. Reeves, 1 T. R. 422. The marshal of the King's Bench is an officer within this statute, Bracebridge v. Vaughan, Cro. Eliz. 66; but the serjeant-at-arms of the House of Commons is not, Norfolk v. Elliot, 1 Lev. 209.

(38) Upon an attachment of privilege, attachment upon a prohibition, attachment in process upon a penal statute, the sheriff may be compelled to take bail by force of this statute; but not upon an attachment for a contempt, issuing out of B. R.* or C. B.† or the Court of Chancery, for disobeying a subpoena‡. But although the sheriff is not compellable to take bail upon an attachment out of Chancery, yet he is not prohibited by statute 23 Hen. VI. from doing so; and a bail-bond so taken is good at common law, and may be enforced by the sheriff. Morris v. Hayward, 6 Taunt. 569. But assignee thereof cannot maintain action, it not being within the stat. of 4 & 5 Ann. c. 16. Meller v. Palfreyman, 4 B. & Ad. 146. In Studd v. Acton, it was holden, that the words " by force of any writ, bill, or warrant, in any action personal," were confined to actions at law.

(39) The sheriff is not authorized to take a bond for the appearance

* Anon. 1 Str. 479. Resolved by all the judges.

+ Field v. Workhouse, Comyn's Rep. 264.

Studd v. Acton, 1 H. Bl. 468.

§ Bengough v. Rossiter, 4 T. R. 505.

sonable surety (40) of sufficient persons, having sufficient within the counties where such persons are let to bail, to keep their days in such place as the said writs, bills, or warrants, shall require; persons in ward by condemnation, execution, capias utlagatum or excommunicatum, surety of the peace, or by special commandment of any justice excepted. And no sheriff, &c. shall take, or cause to be taken or made, any obligation for any cause aforesaid, or by colour of their office, but only to themselves, of any person, nor by any person, which shall be in their ward by course of law, but upon the name of their office, and upon condition that the prisoners shall appear at the day and place contained in the writ, &c.; and if any sheriffs, &c. take any obligation in other form, by colour of their office, it shall be void. The constant usage since the passing this act has been for sheriffs, and other officers, to take a security by bond (k). Regularly, this bond ought to be taken with two or more sureties, at the least, the words of the statute being "surety of sufficient persons ;" and the sheriff, &c. may insist upon two sureties being given; yet it has been adjudged (1), that, as the indemnity is for the protection of the sheriff, &c. he may waive the benefit, and take a bond with one surety only.

The form of surety prescribed by the statute must be strictly pursued, that is,

1st. The bond must be made to the sheriff or other officer himself (m). Hence a bond made to the sheriff's bailiff is bad.

(k) See note (40).

(1) Drury's case, 10 Rep. 100, b. 101, a., recognized in Cotton v. Wale, Cro. Eliz.

862.

(m) 1 T. R. 422.

of persons arrested by him, under process issuing upon an indictment at the quarter sessions, for a trespass and assault; because at common law the sheriff could not bail any persons indicted before justices of the peace*, and this stat. of 23 Hen. VI. was not passed to enable the sheriff to take bail in cases where he could not bail before; but in order to compel him to take bail in those cases, where he might have taken bail, and neglected so to do. At common law, the sheriff might have bailed persons indicted before him at his torn †, and, consequently, by this statute he was compellable to bail such persons; but the stat. I Edw. IV. c. 2, having taken away the sheriff's power of bailing in such cases †, the stat. 23 Hen. VI. is in this respect rendered of none effect.

(40) According to the opinion of Ashhurst, J., in Rogers v. Reeves, 1 T. R. 421, a security of a lower nature than a security by bond, as a simple contract undertaking, is insufficient. If the sheriff refuses to take bail, sufficient sureties being tendered, the proper remedy against him is an action of trespass on the case. Smith v. Hall, 2 Mod. 32.

*2 Hawk. P. C. c. 15, s. 26.

+ Id. sect. 27.