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

1. The general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration; without offering any special matter whereby to

defendant therein might then maintain an action for the surplus. 3 Esp. Rep. 104. Though the defendant does not avail himself of the set-off, 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 set off; 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. Camp. 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 id. 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. 394; 6 T. R. 488; 1 Taunt. 137; 2 Burr. 1024; 2 Bla. Rep. 910; 1 Taunt. 137; 5 B. and A. 92; 3 Campb. 329; Peake Rep. 41; 6 Taunt. 162; 1 Marsh. 514, S. C.; 2 Brod. and B. 89; 1 M. and S. 499: 5 id. 539, &c. See cases in 1 Chit. on Pl. 4th ed. 486, 487; 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 is taken in execution. 5 M. and 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 id. 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. and 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 id. 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. 361, n. S. C.; see Peake, 196; 12 Ves. 346; 11 id. 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. Bull. 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. and 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. and A. 137. And if an agent sells 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 T. 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. 243. And where an auctioneer 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.; 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.]

evade it. As in trespass either in 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.

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 [*306 ] special pleading having been frequently perverted 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 shown 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.

Also, a man may plead the statutes of limitation (a) in bar; (20) or the time limited by certain acts of parliament, beyond which no plaintiff can lay his

(y) Appendix, No. II. § 4.

(z) Ibid. No. III, § 6.

(a) See pages 188, 196.

Wherever by a contract mutual duties and obligations are laid upon two parties, and one sues for a breach by the other, the defendant may meet the demand by a counter-claim for a breach of duty by the plaintiff. This is called recoupment. 2 Pars, on Con. 247. It differs from setoff, in that the damages recouped must grow out of a breach of the same contract on which suit is brought: Batterman v. Pierce, 3 Hill, 171; Stow v. Yarwood, 14 Ill. 424; also in that the damages may be unliquidated, and the defence may be made in cases of tort, provided the tort springs from the violation of contract. Stow . Yarwoon, supra.

If the defendant's damages exceed the claim established by the plaintiff, the action will thereby be defeated, but the defendant cannot have judgment for the excess. Britton v. Turner, 6 N. H. 481; Ward v. Fellers, 3 Mich. 281.

(20) [The statute does not begin to run till the cause of action is complete, and the party is capable of suing on it. Cro. Car. 139; 1 Lev. 48; Saik. 442; 1 Bla. Rep. 354. No action lies against a consignee of goods for not accounting and returning the goods undisposed 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: 1 H. B. 631; 5 B. and 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. 4th ed. 131, 339; Cro. Eliz. 548; and see Chitty on Bills, 6th ed. 373. Where a payeð of a bill of exchange was dead at the time the bill became due, it was held that the tatute did not begin to run until letters of administration were taken out: 5 B. and

cause of action. This, by the statute of 32 Hen. VIII, c. 2, in a writ of right, is sixty years: in assizes, writs of entry, or other possessory actions real, of the seisin of one's ancestors, in lands; and either of their seisin, or one's own, in rents, suits, and services, fifty years: and in actions real for lands grounded

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 froin 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. and A. 628, 288; 4 Moore, 508; 2 Brod. and B. 73, S. C.; or the damage arose. 5 B. and 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 id. 70; 1 Lev. 298; 4 Mod. 105; Peake. 121; 1 Vern. 456; 2 id. 276. It has been considered, that by the effects of the above exception, there can be no limitation to a merchant's open and unsettled account; this opinion however appears erroneous, and if there is no item in the account, or acknowledgment of the debt, within six years, the statute will take effect: but as we have be fore 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 id. 198; 18 id. 286; 2 id. 200, acc.; sed vide opinion of Lord Hardwicke mentioned in 19 id. 185; 6 T. R. 189. 192, cont.; and from these decisions it appears, that merchants' accounts stand not upon better grounds, in regard to the statute, than other parties.

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 therefore 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. and S. 76, per Bayley, J.; 3 B. and A., 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. and C. 372, S. C.; 5 B. and A. 204; 3 id. 288; and a subsequent acknowledgment of a trespass will not take the case out of the act. 1 B. and A. 92; 3 Chit. Rep. 249, S. C.

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, and 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. and C. 149; 3 D. and R. 522, S. C.: sed quare. And it makes no difference whether the acknowledgment be accompanied with a promise or refusal to pay; a bare acknowledgment is sufficient. 16 East, 420; 2 Burr. 1099; 5 M. and S. 75; 2 B. and Cres. 154. The construction of an ambiguous letter or declaration of a defendant, on being served with a writ. or requested to pay a debt, neither admitting or denying it, is strong intimation that it is an acknowledgment, since, if the defendant knew he owed nothing, he would have declared so. 2 T. R. 760; 1 Bing. 266. Where the original agreement is in writing, in order to take the case out of the statute of frauds, a subsequent promise, or admission of the liability to perform such agreement, need not be in writing to take the case out of the statute of limitations. 1 B. and A. 690. An acknowledgment after action brought is good. Selw. N. P. tit. Limitations; Burr. 1099. The admission to a third person is sufficient. 3 B. and A. 141; Loft. 86; 2 B. and C. 154.

On the other hand, where the defendant said, "the executor always promised not to distress me," this was held no evidence of a promise to the testator, to take the cause out of the statute 193

VOL. II.-25

upon one's own seisin or possession, such possession must have been within thirty years. By statute 1 Mar. st. 2, c. 5, this limitation does not extend to any suit for advowsons, upon reasons given in a *former chapter. (¿) [ *307] But by the statute 21 Jac. I, c. 2, a time of limitation was extended to

(b) See page 250.

6 Taunt. 210; so a declaration, "I cannot afford to pay my new debts, much more my old ones ;" is insufficient: 4 D. and R. 179; and so where in assumpsit by an attorney to recover his charges, relative to the grant of an annuity, evidence that the defendant said, "he thought it had been settled when the annuity was granted, but that he had been in so much trouble since that he could not recollect any thing about it," is not a sufficient acknowledgment of the debt to save the statute, notwithstanding proof that plaintiff's bill was not paid when the annuity was granted. 1 J. B. Moore, 340; 7 Taunt. 603; S. C. The referring plaintiff to the defendant's attorney, who, he added, was in possession of his determination and ability, is not an admission that any thing is due: 1 New Rep. 20; and where a defendant, on being applied to by the plaintiff's attorney for the payment of the debt, wrote in answer, "that he would wait on the plaintiff when he should be able to satisfy him respecting the misunderstanding which had occurred between them," this was holden not sufficient to take the case out of the statute: Holt C. N. P. 380; and see 4 Esp. 184; 5 id. 81; a declaration, “I will see my attorney, and tell him to do what is right," is insufficient. 3 D. and R. 267. Payment of money into court, on a special count, will not save the operation of the statute: 3 B. and C. 10; 4 D. and R. 622, S. C.; it only admits the debt to the amount paid in. Id. Bumb. 100.

Where the defendant, an executor, who was sued for money had and received from his testator, was proved to have said, “I acknowledge the receipt of the money, but the testatrix gave it to me," it was held insufficient: Bull. N. P. 143; and so where the defendant, on being applied to for payment of a debt, said, "you owe me more money; I have a set-off against it." 2 B. and A. 759. Where a party, on being asked for the payment of his attorney's bill, admitted that there had been such a bill, but stated that it had been paid to the deceased partner of the attorney, who had retained the amount out of the floating balance in his hands, it seems, that, in order to take the case out of the statute, evidence is inadmissible to show that the bill had never, in fact, been paid in this manner. 4 B. and A. 568. In all cases, unless the defendant actually acknowledge that the debt or obligation did originally exist, the statute will not be avoided. 4 Maule and S. 457; 2 Camp. 160.

The acknowledgment of one partner, to bind the other, must be clear and explicit; and, therefore, it is not sufficient, in order to take a case out of the statute, in an action on a promissory note, to show a payment, by a joint maker of a note, to the payee within six years, so as to throw it upon the defendant to show that the payment was not made on account of the note. 1 Stark. 488.

Where one of two joint drawers of a bill of exchange became bankrupt, and under his commission the endorsees proved a debt (beyond the amount of the bill) for goods sold, &c., and they exhibited the bill as a security they then held for their debt, and afterwards received a dividend; it was held, that, in an action by the endorsees of the bill against the solvent partner, the statute of limitations was a good defence, although the dividend had been paid by the assignees of the bankrupt partner within six years. 1 B. and A. 463; and C. 1 B. and C. 248; 2 D. and R. 363, S. C. So where A and B made a joint and several promissory note, and A died, and, ten years after his death, B paid interest on the note, it was holden, in an action thereon against the executors of A, that the payment of interest by B did not take the case not of the statute, so as to make the executors liable. 2 B. and C. 23; 3 D. and R. 200, S. C. An acknowledgment by an accommodation acceptor, within six years, of his liability to the payce, is not sufficient to take the case out of the statute, for the drawer. 3 Stark. 186.

It is enacted, by 9, Geo. IV, c. 14, that, in actions of debt or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only should be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the enactments of the statutes of limitations, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby. And that, where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, executor or administrator, shall lose the benefit of the said enactments, or either of them, so as to be chargeabe, in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them. The act not to alter the effect of any payment of any principal or interest made by any person whatsoever. And in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear at the trial, or otherwise, that the plaintiff, though barred by either of the said recited acts, or this act, as to one or more of such joint contractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendert, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given, and asis allowed for the plaintiff, as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.

the case of the king, viz., sixty years precedent to 19 Feb. 1623; (c) but, this becoming ineffectual by efflux of time, the same date of limitation was fixed by statute 9 Geo. III, c. 16, to commence and be reckoned backwards, from the time of bringing any suit or other process, to recover the thing in question; so that possession for sixty years is now a bar even against the prerogative, in derogation of the ancient maxim "nullum tempus occurit regi.” By another statute, 21 Jac. I, c. 16, twenty years is the time of limitation in any writ of formedon: and by a consequence, twenty years is also in limitation in every action of ejectment, for no ejectment can be brought, unless where the lessor of the plaintiff is entitled to enter on the lands, (d) and by statute 21 Jac. I, c. 16, no entry can be made by any man, unless within twenty years after his right shall accrue. (21) Also, all actions of trespass (quare clausum fregit, or otherwise), detinue, trover, replevin, account, and case (except upon accounts between merchants), debt on simple contract, or for arrears of rent, are limited by the statute last mentioned to six years after the cause of action commenced: and actions of assault, menace, battery, mayhem, and imprisonment, must be brought within four years, and actions for words within two years, after the injury committed. (22) And by statute 31 Eliz. c. 5, all suits, indictments, and informations upon any penal statutes, where any forfeiture is to the crown alone, shall be sued within two years; and where the forfeiture is to a subject, or to the crown and a subject, within one year after the offence committed, (23) unless where any other time is specially limited by the statute. Lastly, by statute 10 Wm. III, c. 14, no writ of error, scire facias, or other suit, shall be brought to reverse any judgment, fine or recovery, for error, unless it be prosecuted within twenty years. (24) The use of these statutes of limitation is to preserve the peace of the kingdom, and to prevent those innumerable perjuries which might ensue if a man were allowed to

By action 2, that, if defendant in action on simple contract shall plead in abatement to the effect that any other person ought to be jointly sued, and issue be joined on such plea, and it should appear at the trial that the action could not, by reason of the said recited acts, or the present act, be maintained against the other person named in such plea, the issue joined on such plea should be found against the party pleading the same.

By action 3, no endorsement or memorandum of payment made after the 1st of January, 1829, upon any promissory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes.

By section 4, said recited acts and the present act shall apply to the case of any debt on simple contract, by way of set-off on the part of any defendant, either by plea, notice, or otherwise. By action 8, no memorandum or other writing made necessary by the act shall be deemed to be an agreement within the meaning of the stamp acts.]

(21) Some important modifications of the statutes limiting the time for the commencement of suit, were made by statutes 3 and 4 Wm. IV, cc. 27, 42. Actions for the recovery of lands or rents are required by these statutes to be brought within twenty years, with a saving of cases of persons under disability, who are allowed ten years after the disability ceases, but not to exceed forty years in all. Personal actions, generally, are required to be brought within six years after the right accrues, but suits in trespass, for assault and battery, must be brought within four years, and suits for verbal slander within two years. Actions upon specialty may be brought at any time within twenty years. Actions against justices, constables, &c., for any thing done in the execution of their office, must be brought within six

calendar months.

The statute 9 Geo. IV, c. 14, above referred to, commonly called Lord Tenterden's act, has been re-enacted in its main features in many of the American states. As to the defence of the statute generally, and what is sufficient to take a case out of it, see 2 Pars. on Cont. 341 et seq., and Angell on Limitation.

(22) In this, as well as in the subsequent statutes, there was a saving in the case of persons under disability.

(23) [Where the forfeiture is to the crown and a subject, a common informer must sue within one year, and the crown may prosecute for the whole penalty, at any time within two years after that year ended.]

Penal actions at the suit of the party aggrieved must now be brought within two years after · ine wrong done. Statute 3 and 4 Wm. IV, c. 42.

(4) The time for bringing error is now limited to six years, by the common law procedure act, 1852.