Where two parties owe each other debts, connected in their origin or by a subsequent agreement, the balance only is the debt, and he to whom it is due should sue only for that; and if he sue for more, the opposite debt may be offered in evidence reducing the claim of the plaintiff to the balance. But where the opposite debts or accounts are not so connected, each constitutes a distinct debt, for which suit may be brought. Such * debts or accounts may, in many cases, be balanced by letting off one against the other, at law or in equity. The law of set-off is very much regulated by statute in this country; and we do not propose to dwell upon the special provisions of any of the State statutes. But these generally contain many principles in common, and although, strictly speaking, set-off may not be a part of the common law, (x) yet some rules and principles have been was subsequently vacated, as to the partner who had not consented, and as to the whole firm at the instance of the judgment creditors, it was held, that the debt for which judgment had been confessed was revived, notwithstanding a receipt in full had been given therefor. Clark v. Bowen, 22 How. 270.

(ww) Smith v. McCluskey, 46 Barb. 610.

(wx) Bischoff v. Wetherell, 9 Wall. 812; De Cosse Brissac v. Rathbone, 90 L. J. Exch. 238; Robertson v. Struth, 5 Q. B. 941; Vanquelin v. Boward, 33 L. J. C. 78; Buchanan v. Rucker, 9 East, 192; Simpson v. Fogo, 29 L. J. C. 657; Scott v. Pilkington, 31 L. J. Q. B. 81.

(x) The defence of set-off, strictly so called, is purely the creature of statute.

Stat. 2 Geo. II. c. 22, § 18, made perpetual by 8 Geo. II. c. 24, § 4, and which, with some modifications, has been generally adopted in the United States (see Meriwether v. Bird, 9 Ga. 694), provides, "that where there are mutual debts between the plaintiff and defendant, or, if either party sue or be 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; and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require, so as at the time of his 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 established by usage and adjudication. And it may be said that courts of equity will generally extend the doctrine of set-off beyond the law, where peculiar equities exist between the parties, calling for this relief. (xx) 1

The law of set-off is quite similar to the compensation of the civil law; (y) not, as we think, because it is borrowed from it, but because both rest on similar principles of common sense and common justice. And although in the details they differ much, the civil law doctrines can be applied to the law of set-off, not only for general, but sometimes for particular illustration.

Set-off has been well defined, as a mode of defence by which the defendant acknowledges the justice of the plaintiff's demand, but sets up a demand of his own against the plaintiff, to counterbalance it in whole or in part. (x)

A demand founded on a judgment may be set off, or upon a contract, if it could be sued in indebitatus assumpsit, debt, or covenant. (a) But if it arise ex delicto, and can be sued only * in trespass, replevin, or case, it is not in general capable of set-off; (b) nor is it if recoverable only by bill in equity. (c) And it is held that in an action for compensation for work done under contract, damages for imperfect execution _of the work cannot be set off. (cc)

Courts usually permit judgments to be set off against each other, on motion, when such set-off is equitable, even if the parties are not the same, (d) whether the statute expressly allow this or not; 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 upon such general issue." The object of these statutes was to prevent cross-actions between the same parties. Isberg v. Bowden, 8 Exch. 852, 22 Eng. L. & Eq. 551; Wallis v. Bastard, 4 De G., M. & G. 261, 31 Eng. L. & Eq. 176. Courts of equity have power at common law, independent of any statute, to order a set-off of debts in certain cases. See 2 Story's Eq. Jur. ch. 38.

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

(y) Domat, pt. 1, b. 4, tit 2, § 1; 1 Ersk. Ins. b. 3, tit 4, § 5; Pothier, Traite des Obligations, pt. 3, ch. 4. It has frequently been said in America, that as the doctrine of set-off was borrowed from the civil law, it should be interpreted by the same principles of construction. See Meriwether v. Bird, 9 Ga. 694; per Kent, J., in Carpenter v. Butterfleld, 3 Johns. Cas. 166. (z) Barbour on Set-off, p. 17.

(a) Hutchinson v. Sturges, Willes, 261; Howlet v. Strickland, Cowp. 66; Dowsland v. Thompson, 2 W. Bl. 910.

(b) Huddersfield Canal Co. v. Buckley, 7 T. R. 45; Sapsford v. Fletcher, 4 T. R. 512; Bull. N. P. 181; Freeman v. Hyett, 1 W. Bl. 394; Dean v. Allen, 8 Johns. 390; Gibbes v. Mitchell, 2 Bay, 361.

(c) Gilchrist v. Leonard, 2 Bailey, 135; Sherman v. Ballou, 8 Cowen, 304.

(cc) Cardell v. Bridge, 12 Gray, 60.

(d) Barker v. Braham, 3 Wilson, 396;

1 Thus the liability of the defendant for rents of premises owned by the plaintiff, but withheld until the determination of the defendant's right of dower in other premises, can, in equity, be set off against her claim for dower out of the plaintiff's premises. Doane v. Walker, 101 Ill. 628.

but it is a matter within their discretion, (e) and is determined by the justice of the case. Therefore it will not be permitted against a bond fide assignee for value. (f) Nor if the defendant is in execution on the judgment, (g) for that is, in general, a satisfaction of it. Or if, having been imprisoned, he has been discharged by his creditor, even if it was not the intention of the creditor to discharge the debt. (h) But if he escapes, or is released from imprisonment under an insolvent act, which does not discharge the debt, the judgment may be set off. (i) And, in the exercise of their discretion, courts usually permit the judgments recovered in other courts to be set off. (j) And not only the original judgment creditor may so * use it, but an absolute assignee for value may make this use of the judgment. (k) Nor is it material on what ground of action the judgment was founded. And if the judgment which it is desired to set off can be enforced by him who would so use it, against the party who has the judgment to be satisfied by the set-off, this is sufficient; and therefore it is not necessary that the judgments be in the same rights, or that the parties on the record be the same. (l) So costs may be set off, either against costs alone, or against debt and costs. (m) After