§ 1468. In the next place as to Set-off. The subject of set-off is a cross debt or claim on which a separate action might be sustained, due to the party defendant from the party-plaintiff. This is a defence which is created by statute, and has no existence at common law, and we shall, therefore, only briefly allude to it, inasmuch as the rules applicable thereto are varied by the statute regulations of the different States in the United States.
§ 1469. A set-off can only be pleaded in respect of mutual debts of a certain and definite character, and does not apply to claims founded in damages, or in the nature of penalties.1 And this rule is mutual. If the suit be not for a debt, but for unliquidated damages, no set-off is allowable as a general rule; as in an action for not accepting a bill of exchange,2 for not accounting,3 for not replacing stock according to agreement,4 for breach of a covenant for quiet enjoyment,6 for breach of warranty,6 for not indemnifying the plaintiff for the defendant's debt,7 for an average loss on a policy of insurance.8 No debt can be set off unless it be actually due to the defendant1 at the time that the writ is issued, and continue due until the plea of set-off is made.2
1 Morley v. Inglis, 5 Scott, 314; 8. c. 4 Bing. N. C. 58; 6 Dowl. 202; Grant v. Royal Ex. Ass. Co., 5 M. & S. 442; Hardcastle v. Netherwood, 5 B. & Ald. 93; Attwooll v. Attwooll, 2 El. & B. 23; 18 Eng. Law & Eq. 386; Drew v. Towle, 7 Foster, 427.
2 Hutchinson v. Reid, 3 Camp. 329.
3 Birch v. Depeyster, 4 Camp. 385.
4 Gillingham v. Waskett, 13 Price, 434.
5 Warn v. Bickford, 7 Price, 550.
6 Dowd v. Faucett, 4 Dev. 92.
7 Hardcastle v. Netherwood, 5 B. & Ald. 93; Attwooll v. Attwooll, 2 El. & B. 23; 18 Eng. Law & Eq. 386.
8 Castelli v. Boddington, 1 El. & B. 66; 16 Eng. Law & Eq. 127.
§ 1470. So, also, although it is not necessary that a debt, in order to be the subject of a set-off, should be of the same nature and degree as that upon which the action is founded, yet it must be due in the same right and between the same parties. Thus, in an action by several persons on a claim, the defendant cannot set off a debt due from one of them to him.3 So, also, a demand due to a partnership cannot be set off by a private and separate debt of one partner.4 But in an action against a principal and his surety, the defendants may set off a claim due from the plaintiff to the principal alone.5 So, also, a defendant sued as an executor or administrator cannot, in his representative capacity, set off a debt due to him personally.6 And if an administrator sue on a claim originating between himself as administrator and the defendant, the latter cannot, in England, set off a debt due him from the intestate.7
§ 1471. Merely equitable demands cannot be pleaded in set-off at law.8 Thus, it has been held that the defendant could not plead by way of set-off a bond debt of the plaintiff assigned to him by another person, for whose benefit it was originally given.9
1 Hardy v. Corlis, 1 Foster, 356; Richards v. James, 2 Exch. 471; Kelly v. Garrett, 1 Gil. 649; Cox v. Cooper, 3 Ala. 256.
2 Carpenter v. Butterfield, 3 Johns. Cas. 145; Jefferson Co. Bank v. Chapman, 19 Johns. 322; Rogerson v. Ladbroke, 1 Bing. 93; 7 Moore, 412; Young v. Gye, 10 Moore, 198.
3 France v. White, 6 Bing. N. C 33; s. c. 8 Dowl. 53; Walker v. Leighton, 11 Mass. 140.
4 Walker v. Leighton, 11 Mass. 140.
5 Mahurin v. Pearson, 8 N. H. 511; Boardman v. Cushing, 12 N. H. 119; Concord v. Pillsbury, 33 N. H. 310.
6 Hutchinson v. Sturges, Willes, 263; Schofield v. Corbett, 6 N &M. 527; s. c. 11 Q. B. 779.
7 Rees v. Watts, 33 Eng. Law & Eq. 425; 11 Exch. 410, overruling whatever is contrary in Blakesley v. Smallwood, 8 Q. B. 538; and Mar-dall v. Thellusson, 18 Q. B. 857; 14 Eng. Law & Eq. 74.
8 Isberg v. Bowden, 8 Exch. 852; 22 Eng. Law & Eq. 551.
9 Wake v. Tinkler, 16 East, 36; Tucker v. Tucker, 4 B. & Ad. 745; Wolf v. Beales, 6 Serg. & R. 244.