BOOK II. CHAPTER I. SET-OFF. THE principle of set-off, was unknown at the common law. It was introduced into the English practice by Stat. 4. Anne, c. 17. and its application was subsequently enlarged by Stat. 5. Geo. II. c. 20. The right of set-off in our practice, is derived from our statutes, in all cases, with the single exception of the practice in relation to cross-judgments. SECT. I. SETTING OFF DEMANDS. In what actions. The enumeration in the statutes of set-off, of the several actions in which demands in set-off may be filed, embraces only,-actions brought to recover debts, due on book account, an account stated by the parties, -a quantum meruit,- quantum valebat, - -for services done upon an agreed price,' and actions for debt upon simple contract, or promise in writing not under seal.2 From the phraseology of these statutes, some doubt might arise, whether actions of assumpsit to recover 1 Stat. 1784. ch. 28. s. 12. * Stat. 1793. ch. 75. s. 4. uncertain damages, are included. The words in the Stat. 1793. ch. 75. are, any "action, brought for any debt, upon simple contract, or promise in writing not under seal." A strict construction excludes all but debts, and the nature of the whole provision in both statutes, and of set-off in general, seems to confirm that construction. In actions for mere damages, therefore, as for misfeasance and non-feasance, and in actions on collateral promises, as of indemnity and guaranty, it may be doubted, whether set-off is allowable. No set-off can be had in covenant, debt upon specialties, or records, -or in any action in form ex delicto. What demands. By Stat. 1784. ch. 28. s. 12. "the defendant may file any account he hath," and by Stat. 1793. ch. 75. s. 4. he may file his demands against the plaintiff, for "goods delivered, monies paid, or services done." The demands must be founded in contract; a claim, therefore, arising from the negligence of the plaintiff, as a factor in relation to merchandize consigned to him, cannot be set-off'.' They must be due on simple contract, and not by specialty or record, and they must be for a certain sum, or a sum capable of being reduced to a certain charge, or account, and not for unliquidated damages. Under the head of "monies paid," the defendant may file an account for monies had and received,2 and may give in evidence, promissory notes of the plaintiff payable to himself, or indorsed to him, before the action was commenced.3 1 Adams et al. v. Manning et al. 17 Mass. Rep. 178. 2 Richards v. Blood, 17 Mass. Rep. 66. Truesdell v. Wallis, 4 Pick. Rep. 63. 3 Sargent et al. v. Southgate, 5 Pick. Rep. 312. Braynard v. Fisher, Pick. Rep. 355. A demand for board, washing and lodging, is within the meaning of "goods delivered and services done," and may be filed in set-off.1 parties. The demands must generally be between the same Thus, where there are two defendants, a demand in favor of one cannot be set-off; and so, where there are two plaintiffs, a demand against one cannot be set-off, nor a demand against the plaintiff and another person.2 But a debt due to, or from one as surviving partner, may be set-off, as if he were the sole contractor.3 And in an action brought in the names of an ostensible and a dormant partner, the defendant may setoff demands against the ostensible partner only.* In an action by the indorsee against the maker of a note, indorsed after it became due, the defendant may give in evidence his demands against the payee, which accrued before the transfer, by filing the same in setoff, even though he may have commenced an action, and the action be pending." 5 7 But he must file them in the manner pointed out by the statute, or they cannot be allowed, unless the plaintiff received the note fraudulently, for the purpose of preventing the defendant's set-off. 8 1 Witter v. Witter, 10 Mass. Rep. 223. 2 Walker v. Leighton et al. 11 Mass. Rep. 140. 3 Ibid. 4 Lloyd v. Archbowle, 2 Taunt. Rep. 324. Lord v. Baldwin, 6 Pick. Rep. 348, 352. 5 Sargent et al. v. Southgate, 5 Pick. Rep. 312. Peabody v. Peters et al. 5 Pick. Rep. 1. |