the plaintiff;" by paying into the hands of the proper officer of the court as much as the defendant acknowledges to be due, together with the costs hitherto incurred, in order to prevent the expense of any farther proceedings. This may be done upon what is called a motion ; which is an occasional application to the court by the parties or their counsel, in order to obtain some rule or order of court, which becomes necessary in the progress of a cause; and it is usually grounded upon an affidavit (the perfect tense of the verb affido), being a voluntary oath before some judge or officer of the court, to evince the truth of certain facts, upon which the motion is grounded: though no such affidavit is necessary for payment of money into court. If after the money paid in, the plaintiff proceeds in his suit, it is at his own peril: for, if he does not prove more due than is so paid into court, he shall be nonsuited and pay the defendant costs; but he shall still have the money so paid in, for that the defendant has acknowledged to be his due. In the French law the rule of practice is grounded upon principles somewhat similar to this; for there, if a person be sued for more than he owes, yet he loses his cause if he doth not tender so much as he really does owe. (w) To this head may also be referred the practice of what is called a set-off: whereby the defendant acknowledges the justice of the plaintiff's demand on the one hand; but on the other sets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part: as, if the plaintiff sues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandise sold to the plaintiff, and in case he pleads such set-off, must pay the remaining balance into court. This answers very nearly to the compensatio, or stoppage, of the civil law, (x) and depends on the [305] statutes 2 Geo. II. c. 22. and 8 Geo. II. c. 24. which enact, 'that where there are mutual debts between the plaintiff and defendant, one debt may be set against the other, and either pleaded in bar or given in evidence upon the general issue at the trial; which shall operate as payment, and extinguish so much of the plaintiff's demand.

w Sp. L. b. 6. c. 4.

x Ff. 16. 2. 1.

(35) The allowing the defendant to pay money into court was introduced for the purpose of avoiding the hazard of proving a tender, and in all cases where there has been no tender, or the tender cannot be proved, it should not be pleaded, but the defendant should merely pay the admitted claim into court. The cases in which the proceeding is allowed are similar to those in which a tender may be pleaded, and which will be found supra, note (33). One case however should be noticed, viz. where the goods have been taken under a mistake, without any loss to the owner, the court upon motion, will stay the proceedings in an action of trespass against a public officer, upon the defendant's undertaking to restore them, or to pay their full value, with the costs of the action. 7 T. R. 53. Chitty.

(36) The effect of the payment of money into court, is nearly similar to that of a tender. See supra, note (33) Lee's P. Dict. 2 ed. 1013. Tidd, 8 ed. 676. This is the only case where a party is bound by the payment of money, 2 T. R. 645.; and though paid in by mistake, the court will not order it to be restored to defendant; though perhaps in a case of fraud they would. 1 B. & P. 392.

(37) But in such case, notice must be given at the time of pleading the general issue; and as to the mode of setting off, see 1 Chit. on Pl. 4 ed. 494 to 497.

In some cases, this plea or notice is unnecessary, as where the defendant's demand is more in the nature of a deduction than a set-off. Thus a defendant is in all cases entitled to retain or claim by way of deduction, all just allowances or demands accruing to him, or payments made by him, in respect of the same transaction or account which forms the ground of action, this is not a set-off, but rather a deduction. See 1 Bla. Rep. 651. 4 Burr. 2133. 2221. And where demands originally cross, and not arising out of the same transaction, have by subsequent express agreement been connected, and stipulated to be deducted or set-off against each other, the baJance is the debt, and the only sum recoverable by suit without any special plea of set-off, though it is advisable in most cases, and necessary when the action is on a specialty, to plead it. 5 T. R. 135, 3 T. R. 599. 3 Taunt. 76. 2 Taunt. 170. In actions at the suit of assignees of bank

Pleas, that totally deny the cause of complaint, are either the general issue, or a special plea, in bar.

rupt, a set off need not be pleaded or given notice of, 1 T. R. 115, 116. 6 T. R. 58. 59. ; though the practice is so to plead, or give notice of such set-off.

It may be important here also to observe, that these acts were passed more for the benefit of the defendants than the plaintiffs, and are not imperative: so that a defendant may have his right to set-off, and bring a cross action for the debt due to him from the plaintiff, 2 Campb. 594 5 Taunt. 148.; though he cannot safely arrest. 3 B. & Cres. 139. And where the defendant is not prepared at the time the plaintiff sues him to prove the set-off, it is best not to avail himself of it, for if the defendant should attempt but not succeed on the trial in proving the set-off, he could not afterwards sue for the amount; and a party cannot bring an action for what he has succeeded in setting off in a former suit against him; though if the set-off were more than sufficient tó cover the plaintiff's demand in the former action, the defendant therein might then maintain an action for the surplus. 3 Esp. Rep. 104. Though the defendant does not avail himself of the setoff, intending to bring a cross action, the plaintiff may defeat it by taking a verdict for the whole sum he proves to be due to him, subject to be reduced to the sum really due on the balance of accounts, if the defendant will afterwards enter into a rule not to sue for the debt intended to be setoff; or he may take a verdict for the smaller sum, with a special indorsement on the postea, as a foundation for the court to order a stay of proceedings, if an action should be brought for the amount of the set-off. 1 Campb. 252.

The demand, as well of the plaintiff as of the defendant, must be a debt. A set-off is not allowed in an action for uncertain damages, whether in assumpsit, covenant, or for a tort, trover detinue, replevin, or trespass. Bull. N. P. 181. 3 Campb. 329. 4 T. R. 512. 1 Bla. Rep. 394. 2 Bla. Rep. 910.

The only cases in which a set-off is allowed, are in assumpsit, debt, and covenant for the nonpayment of money, and for which an action of debt or indebitatus might be sustained, 2 Bla. Rep. 911.; or where a bond in a penalty is given for securing the payment of money on an annuity, 2 Burr. 820. or at least stipulated damages. 2 T. R. 32. The demand to be set-off, also, must not be for unliquidated damages, although incurred by a penalty. 1 Bla. Rep. S94. 6 T. R. 488. 1 Taunt. 157. 2 Burr. 1024. 2 Bla. Rep. 910. 1 Taunt. 137. 5 B. & A. 92. 3 Campb. 329. Peake Rep. 41. 6 Taunt. 162. 1 Marsh. 514. S. C. 2 Brod. & B. 89. 1 M. & S. 499. 5 M. & S. 539, &c. See cases in 1 Chit. on Pl. 4 ed. 486, 7. Stark. on Evid. 1312. part 4. The defendant's bringing an action, or obtaining a verdict for a debt, is no waiver of the right to set-off the debt. 2 Burr. 1229. 3 T. R. 186. And a judgment may be pleaded by way of set-off, though a writ of error be depending upon it, 3 T. R. 188. in notes; but not so after plaintiff be taken in execution. 5 M. & S. 103. The debt to be set off must be a legal and subsisting demand; an equitable debt will not suffice. See 16 East. 36. 136. 7, East, 173. A demand, barred by the statute of limitations, cannot be set off. 2 Stra. 1271. Peake Rep. 121. Bull. N. P. 180. An attorney cannot set off his bill for business done in court, unless he has previously, and in a reasonable time to be taxed, delivered a bill signed. 1 Esp. C. 449. But it is not necessary that a month should intervene between the delivery of the bill and the trial. Id.

The debt sought to be recovered, and that to be set off, must be mutual, and due in the same right; therefore a joint debt cannot be set off against a separate demand, nor a separate debt against a joint one. 2 Taunt. 173. Montague, 23. 5 M. & S. 439. unless it be so expressly agreed between all the parties, 2 Taunt. 170.; and a debt on a joint and several bond of several persons, may be set off to an action brought by only one of the obligors. 2 T. R. 32. A defendant, sued for his own debt, may set off a debt due to him as surviving partner, 5 T. R. 493. 6 T. R. 582.; and in an action brought by an ostensible and a dormant partner, the defendant may set off a debt due from the ostensible partner alone. 2 Esp. C. 469. 7 T. R. $61. n. c. S. C. See Peake, 197. 12 Ves. 316. 11 Ves. 27. id. 517. 16 East. 130. A debt due to a man in right of his wife, cannot be set off in an action against him on his own bond. Bul. N. P. 179. A debt due from a wife dum sola, cannot be set off in an action brought by the husband alone, unless the defendant has made himself individually liable. 2 Esp. C. 594. A debt from an executor, in his own right, cannot be set off against a debt to the testator, 3 Atk. 691. though the executor is residuary legatee. Id. So a debt which accrued to the defendant in the lifetime of the testator, cannot be set off against a debt that accrued to the executor even in that character after the testator's death. Bull. N. P. 180. Willes, 103. 106.

Questions of difficulty frequently arise in cases of set-off, where the agent of the party deals as principal. The rule in these cases is, that if an agent, dealing for a principal, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him as the principal; and though the real principal may appear and sue, yet the purchaser may in such case set off any claim he has against the agent. 7 T. R. 360. 1 M. & S. 576. 2 Marsh. 501. Holt, C. N. P. 124. But a debt due from a broker cannot be set off, in an action by the principal against the purchaser to recover the price of goods sold by the broker, not disclosing his name. 2 B. & A. 137. And if an agent sell goods as his own, or has a lien upon them, and does not part with the goods unless the purchaser expressly agrees to pay him, the purchaser in an action brought against him by such agent for the price of the goods, cannot set off a debt due from the owner to the purchaser. 2 Chit. R. 387. 7 f. R. 359. But if an agent deliver goods without payment, and thereby parts with his lien, the purchaser may in an action by the agent set off a debt due from the principal. 7 Taunt. 245. And where an auc

1. The general issue, or general plea, is what traverses, thwarts, and de. nies at once the whole declaration; without offering any special matter whereby to evade it. As in trespass either vi et armis, or on the case, non culpabilis, not guilty; (y) in debt upon contract, nihil debet, he owes nothing; in debt on bond, non est factum, it is not his deed; on an assumpsit, non assumpsit, he made no such promise. Or in real actions, nul tort, no wrong done ; nul disseisin, no disseisin ; and in a writ of right, the mise or issue is, that the tenant has more right to hold than the demandant has to demand. These pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue: by which we mean a fact affirmed on one side and denied on the other.38

Formerly the general issue was seldom pleaded, except when the party meant wholly to deny the charge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea; which was originally intended to apprise the court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. And it is an invariable rule, that every defence which cannot be thus specially pleaded, may be given in evidence upon the general issue at the trial. But the science of special pleading having been frequently pervert. [306] ed to the purposes of chicane and delay, the courts have of late in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case: and have allowed special matter to be given in evidence at the trial. And, though it should seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness anciently observed, yet experience has shewn it to be otherwise; especially with the aid of a new trial, in case either party be unfairly surprised by the other. 2. Special pleas, in bar of the plaintiff's demand, are very various, according to the circumstances of the defendant's case. As, in real actions, a general release or a fine, both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff from his action. (z) A justification is likewise a special plea in bar; as in actions of assault and battery, son assault demesne, that it was the plaintiff's own original assault; in trespass, that the defendant did the thing complained of in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was.

39

Also a man may plead the statutes of limitation (a) 40 in bar; or the time

z Append. No. III. § 6.

a See pag. 188. 196.

y Append. No. II. § 4. tioneer had sold to the defendant the goods of A. as the goods of B., it was held that this was such a fraud that defendant might set off a debt due to him from B. against the price of the goods of A. Id. ibid. 1 J. B. Moore, 178. As to set off in actions, by or against assignees of bankrupts, see 1 Chit. on Pl. 492 to 494. Stark. on Evid. part. 4. 106. ante, 2 Book, 472. k. (n.)

Chitty.

(38) As to pleas of general issue, in general, and what may be given in evidence under them, 1 Chitty on Pl. 413 and 416.

(39) As to these pleas in general, see 1 Chit. on Pl. 413. to 442.

(40) As questions on the statute of limitations, 21 Jac. I. c. 16. so frequently occur, we will consider this subject more fully in the following order, viz. First, as to what cases the statute extends, and herein in what cases payment of a debt may be presumed at common law. Secondly, when the statute begins to take effect, and herein of the exceptions contained in the statute. Thirdly, what is a good commencement of an action to take the case out of the statute; and Lastly, what acts or admissions will revive the claim.

limited by certain acts of parliament, beyond which no plaintiff can lay his cause of action. This, by the statute of 32 Hen. VIII. c. 2. in a writ of

First, To what Cases the Statute EXTENDS.—The statute does not extend to actions of account, or of covevant, or debt on specialty, or other matter of a higher nature, but only to actions of debt upon a lending, or contract without specialty, or for arrearages of rent reserved on parol leases. Hut. 109. 1 Saund. 38. 2 Saund. 66. Tidd. Pr. 8 ed. 15. It does not extend to warrants of attorney. 2 Stark. 234. It extends to bills of exchange, Carth. 3. attorney's fees, 3 Lev. 367. and to a demand for rent on a parol demise. 1 B. & A. 625.

It does not extend to debt on a bond, Cowp. 109.; but where the bond has been given more than twenty years before the commencement of the action, and no interest has been paid upon it, nor any acknowledgment by the obliger of the existence of the debt during that period, the law will, in general, presume it to have been satisfied, 6 Mod. 22. 1 Bla. Rep. 532. 1T. R. 270. 3 P. Wms. 395. particularly if the debt be large and the obliger has been all along in good circumstances, 1 T. R. 271.; and in some cases, where a bond has been given and interest paid on it within twenty years, the law will presume it to have been satisfied; as where it has been given eighteen or nineteen years, and in the mean time an account has been settled between the parties without taking any notice of the demand, 1 Burr. 434. 1 T. R. 271.; but in such case the presumption must be fortified by evidence of some auxiliary circumstances. Cowp. 214. 1 T. R. 271. 1 Camp. 27. After a considerable length of time slight evidence is sufficient. 1 T. R. 271. and see Tidd, 8 ed. 17. 18. In assumpsit, though the statute be not pleaded, the jury may presume, from the length of time and other circumstances, that the debt has been satisded. 2 Stark. Č. N. P. 497. and see 5 Esp. 52. 3 Camp. 13. 1 Taunt. 572. sed vid. 1 D. & R. 16.

This presumption may be repelled by proof of the recent admission of the debt, or of the payment of interest on the bond within twenty years, 1 T. R. 270.; or that the obligee has resided abroad for the last twenty years, 1 Stark. 101. sed vid. 1 D. & R. 16.; or that the obligor was in insolvent circumstances, and had not the means of payment, 19 Ves. 196. Cowp. 109. 1 Stark. 101.; or that the demand was trifling, Cowp. 214.; or other circumstances, explaining satisfactorily why an earlier demand has not been made. 1 Stark. 101. The fluctuation of credit, together with the circumstance of the security remaining with the obligee, is of great weight to rebut presumption of payment thereof, 19 Ves. 199. 1 Stark. 374. ; an indorsement by the obligee, porporting that part of the principal sum has been received, if made after the presumption of payment has arisen, is inadmissible. 2 Stra. 827. 2 Ves. 42. sed vid. 1 Barnard, 432. And further, if the defendant produce direct evidence of the payment of the principal sum and interest at a certain time within twenty years, the plaintiff will not be allowed to encounter that evidence by an indorsement in the hand-writing of the obligee, purporting that interest was paid at a subsequent time. 2 Camp. 322.

Secondly, WHEN THE STATUTE BEGINS TO TAKE EFFECT. It does not do so till the cause of action is complete, and the party is capable of suing on it. Cro. Car. 139. 1 Lev. 48. Salk. 442. 1 Bla. Rep. 354. No action lies against a consignee of goods for sale, for not accounting and returning the goods undisposed of, until demand, and therefore the statute does not begin to run until the time when demand is made. 1 Taunt. 572. The statute begins to operate only from the time when a bill of exchange or promissory note, &c. is due, and not from the date, I H. B. 631. 5 B. & A. 212.; and no debt accrues on a bill payable at sight, until it be presented for payment. 2 Taunt. 323. The statute of limitations begins to run from the date of a note, payable on demand. 1 Ves. 344. 2 Selw. 4 ed. 131. 339. Cro. Eliz. 548. and see Chitty on Bills, 6 ed. 373. sed quare, see Hard. 36. 14 East, 500. 1 Taunt. 575, 6. Sir W. Jones, 194. 12 Mod. 444. 15 Ves. 487. Where a payee of a bill of exchange was dead at the time the bill became due, it was held that the statute did not begin to run until letters of administration were taken out, 5 B. & A. 212. Skin. 555.; but where the cause of action is complete in the lifetime of the testator, then the statute begins to run from that time, and not from the granting of the probate. Willes, 27. Where a breach of a contract is attended with special damage, the statute runs from the time of the breach, which is the gist of the action, and not from the time it was discovered, 3 B. & A. 628. 288. 4 Moore, 508. 2 Brod. & B. 73. S. C. or the damages arose, 5 B. & A. 204. If there is mutual credit between two parties, though the items on both sides are above six years old, with the exception of one item on each side, which are just within the period, this is sufficient to take the whole out of the statute, for every new item and credit in an account given by one party to the other is an admission of there being some unsettled account between them. 6 T. R. 189.2 Saund. 127. a. n. (6.) But where all the items are on one side so that the account is not mutual, as for instance, in an account between a tradesman and his customer, the last item which happens to be within six years, will not draw after it those which are of a longer standing. Bull. N. P. 149.

The exception in the statute, respecting, merchants' accounts, extends only to those cases where there are mutual and reciprocal accounts and demands between two persons, and where such accounts are current and open, and not to accounts stated between them, 2 Ves. 400. Bull. N. P. 149. Sir W. Jones, 401. 1 Sid. 465. 1 Vent. 89. for no other actions are excepted but actions of account. Carth. 226. 1 Show. 341. S. C. 2 Saund. 127. a. 2 Mod. 312, and 1 Mod. 70. 1 Lev. 298. 4 Mod. 105. Peake, 121. 1 Vern. 406. 2 Vern. 276. It has been considered, that by the effect of the above exception there can be no limitation to a merchant's open and unsettled account; this opinion however appears erroucous, and if there is no item in the account,

right, is sixty years: in assises, writs of entry, or other possessory actions real, of the seisin of one's ancestors, in lands and either of their seisin, or

or acknowledgment of the debt within six years, the statute will take effect; but as we have before seen, if even the last item of the account is within six years, that preserves all the preceding items of debt and credit from the operation of the statute. 6 Ves. 580. 15 Ves. 198. 18 Ves. 286. 2 Ves. 200. acc. sed vide opinion of lord Hardwicke mentioned in 19 Ves. 185. 6 T. R. 189. 192. cont., and from these decisions it appears, that merchant's accounts stand not upon better grounds, in regard to the statute, than other parties. The exception extends to all merchants, as well inland as to those trading beyond sea, Peake C. N. P. 121. 2 Saund. 127. B. acc. Chan. Ca. 152. cont.; and the effect of the exception has also been extended to other tradesmen, and persons having mutual dealings. 6 T. R. 189. Peake N. P. 127. overruling, sed vide 7 Mod. 270. cont. But in all these cases, the accounts must be mutual, together with reciprocal demands on each side, and not as in the case of a tradesman and his customer, where the items of credit are all on one side. Bull. N. P. 149.

The exception in the act, respecting infants, &c. only extends to plaintiffs, Carth. 156. 226. 6 Show. 99. Salk. 420. 2 Stra. 836.; but by 4 & 5 Ann. c. 16. s. 19. it is extended to defendants beyond seas at the time of the cause of action accruing. If the plaintiff be in England when the cause of action accrues, though he afterwards go abroad, the time of limitation begins to run from the accruing of the action, 1 Wils. 134.; and so, though one of several plaintiffs be abroad when the cause of action accrues. 4 T. R. 516. It extends to persons absent in Scotland, 1 Bla. R. 286. 1 D. & R. 16.; and the plaintiff, though absent there, must sue within the limited time; but it does not extend to persons in Ireland, 1 Show. 91. the latter being considered as beyond the sea, within the meaning of the above provision. Foreigners living beyond the sea, have the same advantage of the proviso as natives residing here. 2 Bla. R. 723. 3 Wils. 145. S. C. Though the demand be on a bill of exchange, the plaintiff's absence beyond sea saves the statute. Strange, 836. Where the cause of action accrues within the jurisdiction of the su prene court at Bengal, whilst the parties are resident there, the statute of limitations, as far as respects a suit in this country, begins to run only from the time of their concurrent presence here. 13 East, 439.

When once the statute has began to run, nothing stops its course, as where a tenant in tail leaves two sons infants, and the eldest having attained the age of twenty-one dies without issue, the statute begins to run against his brother, though a minor. 4 Taunt. 826. And see the cases, 1 Wils. 134. T. R. 516. just cited.

Thirdly, WHAT 18 A GOOD COMMENCEMENT OF AN ACTION, TO TAKE THE CASE OUT OF THE STATUTE. (See Tid, 8 ed. 24, 5. 144. 152. 161.)

If the plaintiff, having commenced a suit in due time, die, or, being a feme-sole at the commencement of the action, marry, the representative in the one case, or husband and wife in the other, if they commence a new action within a reasonable time afterwards, it will suffice; see Willes, 259. N.E. 2 Salk. 425. Bull. N. P. 150. a year seems to be a reasonable time within this rule. 1 Lord Raym. 434. 1 Lutw. 256. S. C. 2 Stra. 907. Cro. Car. 294. sed vid. 1 Lord Raym. 283. 1 Salk. 393. S. C. at all events half a year would be. Cowp. 733. 740.

Lastly, WHAT ACTS OR ADMISSIONS WILL REVIVE THE CLAIM.-The object of this statute was to protect individuals against forgotten claims of so obsolete a nature, that the evidence relating to the contract might probably be no longer to be found, and thereby might lead to perjury. It proceeds also upon the supposition that the debtor has paid, but after a lapse of time may have lost his voucher. See 5 M. & S. 76. per Bayley, J. 3 B. & A. 142. per Abbott, J. In cases therefore, where there is an acknowledgment of the debtor or contractor, to prove the existence of the debt or obligation, or an express promise to pay or perform the same, the statute will not operate to protect him, notwithstanding the lapse of six years, or more, since the cause of the action may have accrued. But if a cause of action arising from the breach of a contract to do an act at a specific time, be once barred by the statute, a subsequent acknowledgment by the party that he broke the contract, will not, it seems, take the case out of the statute, 2 Camp. 160. and see Peake's Evid. 205. 5 Moore, 105. 2 B. & C. 372. S. C. 5 B. & A. 204. 3 B. & A. 288.; and a subsequent acknowledgment of a trespass will not take the case out of the act. 1 B. & A. 92. 2 Chit. Rep. 249. S. C. The sufficiency of an acknowledgment to take the case out of the statute, will be considered; first, where it directly acknowledges the debt; secondly, where it acknowledges the debt having existed, but is accompanied by a declaration of its being discharged; and thirdly, with reference to the party making the admission.

In the first case, the slightest acknowledgment has been held sufficient, 2 Burr. 1099. Bull. N. P. 149. Cowp. 548.; as where the debtor exclaimed to the plaintiff, "What an extravagant bill you have delivered me!" Peake N. P. 93. So where the defendant met a man in a fair, and said that he went there to avoid the plaintiff, to whom he was indebted, this was held to save the statute. Loft, 86. In an action by an administrator, an agreement for a compromise executed between intestate and defendant, wherein the existence of the debt sued for, was admitted, was deemed sufficient to take the case out of the statute. 9 Price, 122. It is sufficient to prove. that a demand being made by a seaman on the owner of a ship for wages, which had accrued during an embargo, he said, "if others paid he should do the same.' 4 Camp. 185. A promise, if there should be any mistake, it should be rectified," referring to payments actually made, is sufficient. 2 B. & C. 149. 3 D. & R. 522. S. C. sed quære. And it makes no differ.