1 A demand against the obligee of a bond obtained by the obligor after notice of an assignment by the obligee, is not a matter of set-off against the assignee. George v. Tate, 102 U. S. 564.

A debt canuot be set off to an action unless it was due when the action was brought. (rs) Thus, it is held that a demand barred by the statute of limitations and revived by a new promise, cannot be set off to an action brought while the bar existed. (rt) And it is held that there can be no set-off against a set-off. (ru)

One important and very general principle in the law of set-off is, that the demand must be due to the party, or the claim must be possessed by him, in his own right. (s)l But this may be, either as original creditor or payee, or as owner by assignment. It seems indeed to be settled, that debts held in the right of another can be set off neither at law nor in equity. But a question sometimes exists as to the application of this rule. Whether a party holds a claim or debt for this purpose in his own right may perhaps be determined by two tests: he so holds it, if, first, he can sue for it in his own name, without setting forth as the foundation of his right some representative or vicarious character; and, secondly, if, having sued for and recovered the debt, he would have a right to use it at his own pleasure, and for his own benefit, or has a valid lien on it for his own security. The rights to the two demands, one of which is to be balanced against the other by setoff, must "be similar rights. Thus, if an executor sues as executor, the defendant may set off a debt due from the testator; (t) if he sues for a cause of action accruing after the testator's death, and does not describe himself as executor, the defendant cannot set off a debt due to him from * the testator; (u) he cannot

(r) Fletcher v. Dyche, 2 T. R. 32; Duckworth v. Alison, 1 M. & W. 412.

(rr) Grimes v. Reese, 30 Ga. 330; Corey v, Janes, 16 Gray, 543. But it is said that unliquidated damages growing out of the contract sued on, may be set off, in De Forest v. Oder, 42 Ill. 500.

(rs) Henry v. Butler, 32 Conn. 140.

(rt) Lee v. Lee, 31 Ga. 26.

(ru) Russell v. Miller, 64 Penn. St. 154.

(s) This is too universally settled to need the citation of adjudged cases.

(t) But if the defendant has purchased a debt against an intestate, since his death, it has been held, that he cannot set it off against an action by the administrator to recover a debt due the intestate. Root v. Taylor, 20 Johns. 137; Whitehead v. Cade, 1 How. (Miss.) 95.

(u) Kilvington v. Stevenson, Willes, 264, note; Tegetmeyer v. Lumley, id.; Schofleld v. Corbett, 6 Nev. & Man. 627 ; Houston v. Robertson, 4 Camp. 342; Watts v. Rees, 9 Exch. 606, 26 Eng. L. & Eq. 565; Mercein v. Smith, 2 Hill, himself set off a debt due to him personally against a claim on the estate of the testator made against him as executor; (v) nor if he be sued for his own debt can he set off a debt due him as executor. (w) So a debt due to a man in right of his wife cannot be set off in an action against him on his own bond. (x) Nor can a debt contracted by the wife, before marriage, be set off in an action brought by the husband alone; (y)1 unless he has by his promise to pay it made it his own debt. So in a suit either at law or in equity against partners, the demand of one of the defendants against the plaintiff cannot be set off. (z) And, in general, joint

1 In an action by the payee of a joint and several note against one, who, to the knowledge of the payee, joined in it as a surety only, it is competent to the surety, by way of equitable defence, to plead a special plea of a set-off due from the payee to the principal, arising out of the same transaction out of which the liability of the surety arose. Bechervaise v. Lewis, L. R. 7 C. P. 372. A claim of the maker against the payee of a note at maturity can be set off in an action by one to whom the note was indorsed after maturity. Robinson v. Perry, 73 Me. 168.

210; Fry v. Evans, 8 Wend. 530; Dale v. Cook, 4 Johns. Ch. 13; Colby v. Colby, 2 N. H 419; Wolfersberger v. Bucher, 10 S. & R. 10; Brown v. Garland, 1 Wash. Va. 221; Rapier v. Holland, Minor, 176; Burton v. Chinn, Hardin, 252; Mellen v. Boarman, 13 Smedes & M. 100; Shaw v. Gookin, 7 N. II. 16. And see Stuart v. Commonwealth, 8 Watts, 74. In an action by an executor, a legacy bequeathed the defendant cannot be set on, although the executor has funds to pay the legacy. Robinson v. Robinson, 4 Harring. (Del.) 418; Sorrelle v. Sorrelle. 5 Ala. 245. But if the executor is sued for a debt due from his testator in his lifetime, he may set off a debt which has accrued due from the plaintiff to him as executor since the death of the testator. Mardall v. Thelluson, 18 Q. B. 857, 14 Eng. L. & Eq. 74. So where an executor is sued for a debt created by himself as executor, he may set off a debt due from the plaintiff to the testator in his lifetime. Blakesley v. Smallwood, 8 Q. B. 538.

(v) Nor vice versa. Grew v. Burditt. 0 Pick. 265; Snow v. Conant, 8 Vt. 308; Cummings v. Williams, 5 J. J. Marsh. 384; Banton v. Hoomes, 1 A. K. Marsh. 19; Harbin v. Levi, 6 Ala. 899. In an action against an executor to recover a legacy given to the plaintiff's wife, the executor may set off a bond given by the plaintiff himself to the testator in his lifetime. Lowman's Appeal, 3 Watts & S. 849.

(w) Thomas v. Hopper, 5 Ala. 442.

(x) Paynter v. Walker, Bull. N. P. 179. In an action by husband and wife, for a legacy left to the wife "for her own use, the executor cannot set off a debt due from the husband to the testator in his lifetime. Jamison v. Brady, 6 S. & R. 466. Otherwise, if the legacy is given to the wife not to her separate use. Lowman's Appeal, 3 Watts & S. 349. Neither can the husband's debt be set off against the wife's distributive share of her father's estate, when the parties have been divorced; and although such divorce was after the intestate's death. Fink v. Hake, 6 Watts, 131. In a suit by husband and wife for rent of the wife's premises, the defendant may set off a demand against the husband alone. Ferguson v. Lothrop, 15 Wend. 625. But see Naglee v. Ingersoll, 7 Penn. St. 185, where it was held, that a debt due by a husband, or one which he had agreed to pay, could not be set off against a claim for rent due to his wife's separate estate, although she had authorised him to receive the rents without accounting.