When an action is brought by or against a trustee, in that capacity, money due to or from the cestui que trust, may be set off; for it will be considered that the party in interest, and not merely the party of record, is the one by whom or against whom the setoff should be made. (q) and the application to the court was to set aside this nonsuit. It is at once, therefore, obvious, that the present question could not, by possibility, have arisen under such circumstances. The case of Carr v. Hinchliff, and several other cases decided on the same principle, were also cited. It is quite true that there are expressions in the judgment of the learned judges in that case which seem to support the argument for the defendant; but the real ground upon which that and the other cases decided on the same point proceeded is, that where a principal permits an agent to sell as apparent principal, and afterwards intervenes, the buyer is entitled to be placed in the same situation at the time of the disclosure of the real principal, as if the agent had been the real contracting party, and is entitled to the same defence, whether it be by common law or by statute, payment or set-off, as he was entitled to at that time against the agent, the apparent principal. The cases of Carr v. Hinchliff, George v. Clagett, 7 T. R. 359, and Rabone v. Williams, id. 360, n., are all explained on that principle in Tucker v. Tucker. By this case, and that of Wake v. Tinkler, and Lane v. Chandler, referred to in 7 East, 164, the cases of Bottomley v. Brooke, and Rudge v. Birch, must be considered as entirely overruled; and the case of Tucker v. Tucker goes far to show, that the statute of set-off is confined to the legal debts between the parties, the sole object of the statute being to prevent cross-actions between the same parties. The case of Stackwood v. Dunn was cited on behalf of the defendant. It is enough to say, that this case goes much beyond that. In that case it seems to have been ruled, that the demurrer having confessed the truth of the pleas, the set-off was to be allowed between the parties. The cases cited in Story on Agency, p. 861, § 400, as the authority for what is there said, are those already adverted to from 7 Taunton, 287 and 243, and shown not to support the general proposition. In this case the plaintiff was the party whom the defendant agreed to pay; and we think that, looking at the plain words of the statute, we best give effect to the true rule now adopted by all the courts at Westminster for its construction, by holding, that inasmuch as the debts are not mutual debts between the plaintiff and the defendant, the one cannot be set off against the other. This is acting upon the rule as to giving effect to all the words of the statute; a rule universally applicable to all writings, and which we think ought not to be departed from except upon very clear and strong grounds, which do not, in our opinion, exist in this case."

(q) Campbell v. Hamilton, 4 Wash. C C. 92; Sheldon v. Kendall, 7 Cush. 217. See Barrett v. Barrett, 8 Pick. 842. But see Wheeler v. Raymond, 5 Cowen, 231, 9 Cowen, 295; Beale v. Coon, 2 Watts, 183; Porter v. Morris, 2 Harring. (Del.)_509; President, etc. v. Ogle, Wright, 281; Tucker v. Tucker, 4 B. & Ad. 746. In this case 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 lifetime, in consideration of a marriage about to take place between her and the father of S., gave a bond to a trustee, conditioned for a payment of a sum of money to the use of S., if C. should marry and survive her intended husband.

Set-off, it has been said, is in the nature of a cross-action, which may be for a larger amount than was due on the original action. If, therefore, the defendant files and sustains his set-off, and the result is not only that he owes the plaintiff nothing, but that the plaintiff owes him a balance when the mutual and opposing claims are adjusted, the defendant may have judgment and execution against the plaintiff, in that action, for the balance or surplus due to him. (r)

Of the notice of setoff, which must depend much on the several statutes and the rules of court, it is only necessary to * say, that it must be very precise and certain. For set-off is in effect, as has been often said, in the nature of a cross-action, of which the notice takes the place and performs the office of the declaration, and it should be in fact and substance, if not in form, as full and as clear and definite as a declaration, in order that the plaintiff may have the same opportunity of knowing precisely what claim is made against him, that he would have if it were made by an original action. (s)

A defendant has a right to withdraw his account in set-off, although this may expose the plaintiff's claim to the statute of limitations, by the absence of all other evidence of any mutual and open accounts. (t)

A tort cannot be pleaded as set-off in an action for a tort. (tt)

She did marry and survive him, and the money not having been paid in her lifetime, the trustee's executor sued E., the executrix of C, upon the bond. Held, that in this action the claim of E. upon S.'s bond could not be set off. See Isberg v. Bowden, ante, and the remarks of Martin, B. In Hurlbert v. Pacific Ins. Co. 2 Sumner, 471, where the subject was fully discussed, it was decided, that where an insurance was effected by an agent, for the benefit of whom it concerned, and the agent brought an action in his own name, the insurance company could not set off a debt due them from the agent in his own right. Williams v. Ocean Ins. Co. 2 Met 303, is to the same effect.

(r) In England this cannot be done, but the defendant must bring his action for the surplus. Hennell v. Fairlamb, 3 Esp. 104. But in America such a course is common. Good v. Good, 9 Watts, 667; Cowser v. Wade, 2 Brev. 291. And the plaintiff cannot file any counter set-off: Hall v. Cook, 1 Ala. 629; nor discontinue his action: Riley v. Carter, 8 Humph. 230. A defendant cannot file the same account in set-off to two separate actions by the same plaintiff. Chase v. Strain, 16 N. H. 636.

(s) See Barbour on Set-off. Babbington on Set-off (6 Law Lib.).

(t) Theobald v. Colby, 36 Me. 179; Muirhead v. Kirkpatrick, 6 Watts & 3. 606; Cary v. Bancroft, 14 Pick. 318.

(tt) Hart v. Davis, 21 Texas, 411.