An action of assumpsit, although it is not expressly mentioned, is within the equity of the preceding clausee. If the plaintiff is a foreigner, living beyond the sea at the time when the cause of action accrues, and doth not come to England for 50 years, he still has six years after his coming to England to bring an action of assumpsit; and if he never comes to England, his right of action is not barred either against him or his executors or administrators after his death. Hence a replicationf (to a plea of the statute of limitations) that the plaintiff was beyond sea at the time when the cause of action accrued, and that he hath ever since been and still is abroad, was holden good, on demurrer. If the plaintiff be in England when the cause of action accrues, the time of limitation begins to run, and a subsequent departure from the kingdom and going beyond the seas, will not entitle the plaintiff or his representative to maintain an action after the expiration of the limited time (80). So if there are several partners and some are in England at the time when the cause of action accrues, and others beyond the seas, the action must be brought within six years next after the cause of action accrues, notwithstanding the absence of the partners beyond the seas.

Before the statute of Ann, hereinafter mentioned, it was holden, that the exception in the 7th section of the stat. 21 Jac. 1. c. 16. as to persons being beyond the seas, extended only to the case of plaintiffs so absent, and not to that of defendants; 1st. because plaintiffs only are mentioned in the statute of James; and 2dly, because the plaintiffs might have filed an original, and outlawed the debtor, which would have prevented the bar of the statute. But now, by stat. 4. Ann. c. 16. s. 19k, "If any person, against whom there is any cause of action for seaman's wages, or of action upon the case, shall be, at the time of such cause of action accrued, beyond the seas, the person entitled to the action may bring the same against such person after his return from beyond the seas, within the time limited by the 21 Jac. 1. c. 16." To a plea of

e Chandler v. Vilett, 2 Saund. 120. and Rochtschilt v Leibman, 2 Str. 836. and Fitzgib. 81.

f Strithorst v. Grame, 2 Bl. R. 723. g Smith v. Hill, 1 Wils. 134.

h Perry and others v. Jackson, 4 T R. 516.

i Hall v. Wyburn, Carth. 136. and Cheveley v. Bond, Carth. 226.

k Several other actions are mentioned in this statute.

(80) So when a disability is once removed, and the statute has begun to run, no subsequent disability will stop the running. See the opinion of Lord Kenyon, C. J. in Doe dem. Duroure v. Jones, 4 T. R. 311, where that learned judge speaks of the uniform construction of all the statutes of limitation in this respect. See also Gray v. Mendez, Str. 556. and Doe d. Griggs v. Shaen, B. R. M. 28 G. 3. MS. S. P.

the statute it is sufficient to reply that the defendant was in the East Indies, at the time the cause of action accrued, and that the plaintiff commenced his suit against the defendant within six years next after his return to this kingdom; and it is no answer to this replication to say, that the defendant remained more than six years in India after the cause of action accrued there, and within the jurisdiction of the supreme court at Calcutta in that country.

2. Statute of Set-off.-At common law, if the plaintiff was indebted to the defendant, in as much or even more than the defendant owed to him, yet the defendant had not any method of setting off such debt in the action brought by the plaintiff for the recovery of his debt, and consequently the defendant was driven to a cross action. To obviate this inconvenience and to prevent circuity of action, or a bill in equity, it was enacted by stat. 2 G. 2. c. 22. s. 13. (made perpetual by stat. 8 G. 2. c. 24. s. 4.) "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 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 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 on such

general issue." And by stat. 6 G. 2. c. 24. s. 5. it was enacted and declared, "that by virtue of the preceding clause, mutual debts might be set against each other, either by being pleaded in bar, or given in evidence, on the general issue, in the manner therein mentioned, notwithstanding that such debts were deemed in law to be of a different nature; unless in cases where either of the said debts shall accrue by reason of a penalty contained in any bond or specialty; and in all cases where either the debt for which the action shall be brought, or the debt intended to be set against the same shall accrue, by reason of any such penalty, the debt intended to be set off shall be pleaded in bar, in which plea shall be shewn how much is justly due on either side; and in case the plaintiff shall recover in any such action or suit, judgment shall be entered for no more than shall appear to be justly due to the plaintiff, after one debt being set against the other as aforesaid."

1 Williams v. Jones, 13 East, 439.

As to the causes in which a set-off is allowed under the preceding statutes, it must be observed,

1. That the debts sued for, and the debts intended to be set off, must be mutual and due in the same right. Hence a joint debt cannot be set against a separate demand, nor a separate debt against a joint demand; but a debt due to the defendant, as surviving partner, may be set against a demand on defendant in his own righta; and e converso, a debt due from the plaintiff, as surviving partner, may be set againt a debt due from the defendant to the plaintiff in his own right. A defendant sued as executor or administrator, cannot set off a debt due to defendant personally, nor can a person who is sued for his own debt set off what is due to him as executor or administrator. The statute 2 G. 2. c. 22. s. 13. says, if either party sues or is 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. This part of the statute is confined to cases where the party sues or is sued as executor or administrator. Hence where an executor sues for a cause of action arising after the death of the testator, the defendant cannot set off a debt due to him from the testator: A. having been appointed by B. his attorney to receive his rents, did, after his death, receive rent arrear in B.'s life-time; the executrix of B. brought an action againt A. for the money in her own name, not naming herself executrix; the defendant gave notice to set off a debt due to him from the testator, which was not allowed at the trial, because the suit not being as executor, the case is not within the statute. The court of C. B. on a case made, concurred in opinion with the judge who tried the cause. The same rule holds where the plaintiff declares as executor, if the cause of action arose after the death of the testator: In assumpsit by the plaintiff as executor, for goods sold and delivered to the defendant by the plaintiff, as executor, the defendant pleaded a set-off for a debt due from the testator to the defendant. On demurrer, the court held the plea bad: for to allow a set-off in this case, would be altering the course of distributione (81).

a Slipper v. Stidstone, 6 T. R. 493.
b French v. Andrade, 6 T. R. 582.
c Shipman v. Thompson, Willes, 103.
and Bull. N. P. 180.

d Kilvington, executor, v. Stevenson, cited by Erskine from Yate's MSS. in Teggetmeyer v. Lumley.

e Durnford's note, Willes, 264.

(81) So if the cause of. action arises partly in time of testator and partly in time of executor, although the plaintiff declares as executor, yet defendant cannot set off a debt due from the testator to him: In

2. A debt barred by the statute of limitations cannot be set off. If such debt be pleaded in bar to the action, the plaintiff may reply the statute of limitationsf.

3. Where either of the debts accrues by reason of a penalty, the debt intended to be set off must be pleaded in bar, and the defendant in his plea must aver what is really dues.

4. The court under the statutes of set-off can take notice of an interest at lawh only. Under the operation of the new rules, a set-off must now be pleaded specially1, and cannot as formerly be given in evidence under a notice of set-off.

By R. G. T. T. 1 W. 4. No. 6, particulars (if any) of defendant's set-off shall be annexed by plaintiff's attorney to record at the time it is entered with judge's marshal.

An insurance broker is only entitled to receive for the assured, from the underwriter, a payment in money: hence in the settlement of a particular loss, a custom to set off the general balance due from the broker to the underwriter cannot be supported. The averment of what is really due, in cases where the debt accrues by reason of a penalty, has been holden to be traversable1. If an agreement is entered into for the performance of covenants, with a penalty, and the covenants are broken, the penalty cannot be set off: To assumpsit for money lentTM, the defendant pleaded articles of agreement with mutual covenants in a penalty for performance, and shewed a breach whereby the penalty became due, and offered to set off the same; on demurrer, the court held this plea not within the

f Remington v. Stevens, Str. 1271. g Stat. 8 Geo. 2. c 24. s. 5.

h Per Littledale, J. (denying the authority of Bottomley v. Brook, I T. R. 622) in Tucker v. Tucker, 4 B. and Ad. 751.

i Graham v. Partridge, 1 M. and W.
(Ex) 395.

k Todd v. Reid, 4 B. and A. 210.
1 Symmons v. Knox, 3 T. R. 65.
in Nedriff v. Hogan, 2 Burr. 1024. and
Bull. N. P. 180.

covenant by plaintiffs as executors*, for rent arrear in the lifetime of testator, and also since his death, the defendant at the trial before Lord Mansfield, at the sitting after Easter term, 25 Geo. 3. set off a debt due from the testator to him; and the plaintiffs were nonsuited. Erskine moved for a new trial, on the ground that this debt could not be set off in this case, and cited Shipman v. Thompson, Bull. N. P. 180, Kilvington, executor, v. Stevenson, from a MS. of Yates, J., and Ridout and another, assignees, v. Brough, Cowp. 133. Lord Mansfield, C. J. said, that he was satisfied on the point on the authority of Kilvington v. Stevenson, and made the rule absolute.

* Teggetmeyer and another, executors, v. Lumley, B. R. T. 25 G. 3. reported in Durnford's note to Hutchinson v. Sturges, Willes, 264.

statute; Lord Mansfield, C. J. observing, that it was contrary to the intention of the acts, that the penalty should be admitted to be set off, when perhaps a very small sum was due for such damages as the defendant had actually sustained. A set-off reducing the plaintiff's demand under 40s. will not affect the jurisdiction of the superior court, so as to entitle the defendant to enter a suggestion on the roll, in order to obtain costs, either under stat. 3 Jac. 1. c. 15. s. 4o. or under stat. 23 G. 2. c. 33. s. 19°. if it appear that a sum exceeding 40s. was due at the time of action brought (82).

7. Tender.

7. Tender. To an action of assumpsit the defendant may plead non-assumpsit as to part of the plaintiff's demand, and a tender before the commencement of the plaintiff's suit as to the rest; but the defendant will not be permitted to plead non assumpsit to the whole declaration, and a tender as to partP; because, if the general issue should be found for the defendant, it would then appear on the record, that nothing was due, although the defendant by his plea of tender had admitted something to be due. A tender may be pleaded to a quantum meruit, although the demand is uncertain. Johnson v. Lancaster, Str. 576.

n Pitts v. Carpenter, Str. 1191. and 1
Wils. 19.

o Gross v. Fisher, 3 Wils. 48.
p Dowgall v. Bowman, C. B. M. 11

Geo. 3. 3 Wils. 145. and 2 Bl. Rep. 723. Anon. C. B. M. 40 Geo. 3. MSS. Maclellan v. Howard, 4 T. R. 194. S. P.

(82) The language of the two statutes is different. By the statute of James, if it appear to the judge that the debt to be recovered does not amount to 40s. the defendant shall have costs. By the statute of George, the defendant shall recover double costs, if the jury, upon the trial of the cause, find the damages for the plaintiff under 40s. unless the judge certify that 1. the freehold, or 2. the title of the plaintiff's land, or 3. an act of bankruptcy, principally came in question. It does not appear that the court in Gross v. Fisher adverted to this difference. N. Under the Court of Request's Act, for Southwark, 22 G. 2. c. 47. s. 6. if the debt which was originally above 40s. be reduced below 40s. by part-payment before action brought, the defendant will be permitted to enter a suggestion. Clark v. Askew, 8 East, 28. So under the London Court of Requests' Act, if the debt be reduced by part-payment below 51. before action brought, the defendant will be permitted to enter a suggestion. Horn v. Hughes, 8 East, 347.