and the obligor executor administered; it was holden, that the action was discharged as to all the obligors. But if A. and B. are jointly and severally bound in an obligation to C., and A. makes C. and D. his executors; C. refuses, and D. administers, and afterwards C. makes D. his executor; D. as executor of C. may maintain an action on the bond against B.i; for when the obligor makes the obligee and another executors, and the obligee refuses, the debt is not released or discharged, and the obligee or his executor may sue for the debt (28). If feme obligee take the obligor to husband, this is a release in lawk. So if there be two feme obligees, and the one takes the debtor to husband'. The like law is, if two be bound in an obligation to a feme sole, and she takes one of them to husband, and the husband dies, the wife shall not have an action against the other obligor m. But where a man, on the day of his marriage, gave a bond to the woman, to whom he was to be married, by which he stipulated, that his representatives should, within twelve months after his death, pay to his widow, or her representatives a, a sum of money; and the marriage took place, and afterwards the husband died; whereupon the widow brought an action against the representatives of the husband, on the bond; it was holden, that the marriage did not operate as a release of the debt, the bond not being payable during the life-time of the obligor, nor until twelve months after his death. To a plea, that plaintiff by a deed of release had released one of two joint obligors, the plaintiff replied, that the release was given at the request of the defendant, (the other obligor,) and on the express condition, that the release should not operate in his discharge; this was holden bad, on the ground that it sought by the introduction of parol evidence to put on an instrument under seal, a construction differing from the import of that instrument. A covenant not to sue will not operate as a release P, in its own nature, but only by construction, to avoid circuity of action. Hence, if the obligee of a bond i Dorchester v. Webb, W. Jones, 345. k 1 Inst. 264. b. 1 Ib. m 21 H. 7. 30. n Milbourn v. Ewart, 5 T. R. 381. (28) But otherwise, if the obligee administers. Per Cur. S. C. If a debtor make his creditor and another person executors, and the creditor neither proves the will nor acts as executor, he may maintain an action against the other for his demand on the testator. Rawlinson v. Shaw, 3 T. R. 557. covenant not to sue one of two joint and several obligors, and if he do, so that the deed of covenant may be pleaded in bar, he may still sue the other obligor (29). Even in those cases where a covenant not to sue shall be construed to enure as a release to avoid circuity of action, the covenant not to sue must be a perpetual covenant, that is, a covenant not to sue at all; for a mere covenant not to sue within a particular time 9 will not have this effect. In such case the party cannot plead the covenant in bar, but is put to his action of covenant. But if the obligee covenant not to sue the obligor before such a day, and if he do, that the obligor shall plead this as an acquittance, and that the obligation shall be void, this is a suspension of the obligation, and so by consequence a release. A bond was conditioned $, that the obligor should indemnify the obligee from all sums the latter should pay on account of the obligor; before the execution of the bond, the following memorandum was indorsed on it, viz. "that the obligee hath given an undertaking not to sue upon the bond until after the obligor's death;" it was holden, that the memorandum was to be taken as part of the condition, and consequently that the bond was payable only by the representative of the obligor after his death. q Deux v. Jefferyes, Cro. Eliz. 352. 1 r 1 Rol. Abr. 939. L. pl. 2. (29) See Fitzgerald v. Trant, 11 Mod. 254. and Lacy v. Kynaston, Holt's Rep. 178. 1 Lord Raym. 690. and 12 Mod. 551. where the distinction between the covenant not to sue a sole obligor, and one of several obligors is taken; in the latter report it is said, "A. is bound to B., and B. covenants never to put the bond in suit against A.; if afterwards B. will sue A. on the bond, he may plead the covenant by way of release. But if A. and B. be jointly and severally bound to C. in a sum certain, and C. covenant with A. not to sue him, that shall not be a release but a covenant only; because he covenants only not to sue A. but does not covenant not to sue B.; for the covenant is not a release in its nature, but only by construction to avoid circuity of action; for where he covenants not to sue one, he still has a remedy; and then it shall be construed as a covenant and no more." A covenant not to sue one of two joint debtors will not operate as a release to the other. Hutton v. Eyre, 6 Taunt. 289. 8. Set-off. At the 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. To obviate this inconvenience, and to prevent circuity of action, or a bill in equity, it was enacted, by stat. 2 Geo. 2. c. 22. s. 13. (made perpetual by the 8 Geo. 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. [But as to notice, see operation of new rules, ante, p. 151.] Upon the construction of this statute several questions arose: First, Whether a debt on simple contract could be set off in common cases against a specialty debt (30)? 2ndly, If in common cases, whether they could be so set off, where an (30) This question first arose in Stephens v. Lofting, M. 6 G. 2. C. B. 8 Vin. 462. pl. 31, and cited by Willes, C. J. in Hutchinson v. Sturges, Willes, 262, when the court were of opinion that a simple contract debt could not be pleaded by way of a set-off to a bond. But on error in B. R. Yorke, C. J. expressed a strong opinion to the contrary; Probyn, J. concurred with the C. J.; Price, J. doubted, and Lee, J. did not give any opinion; the decision, however, of another point (see post, n. (41)) rendered the determination of this question unnecessary at that time. The same question was again agitated in Brown v. Holyoak *, E. 7. G. 2. C. B. The case was this: In debt for rent † upon a lease by indenture, the defendant pleaded that a greater sum was due from the plaintiff to the defendant, upon a promissory note; after argument, judgment was given for the plaintiff, on the ground that his demand was equal to a specialty, and that a simple contract debt could not be set off against a * Barnes, 290. By an administrator, 8 Vin. 562. executor or administrator is plaintiff (31)? and 3dly, Whether, in the case of a bond, the penalty was to be considered as the debt (32)? To remove these difficulties, it was enacted and declared by stat. 8 Geo. 2. c. 24. s. 5, 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 such debts were deemed in law to be of a different nature; unless in cases where either of the said debts should accrue by reason of a penalty contained in any bond or specialty; and in all cases, where either the debt for which the action is brought, or the debt intended to be set against the same, hath accrued 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 due on either side (33); and in case the plaintiff shall recover in any specialty debt. On error in B. R. the judgment of the Court of Common Pleas was reversed by Lord Hardwicke, C. J. and the court, the day after the stat. 8 G. 2. c. 24, was passed. (31) In Kemys v. Betson, 8 Vin. 561, pl. 30, and cited by Willes, C. J. in Hutchinson v. Sturges, Willes, 262, it was holden in the case of an executor, that simple contract debts could not be set off against debts on specialties; for the debts must be of an equal nature; otherwise such a construction might occasion a devastavit. And in Joy v. Roberts, in the Exchequer, (cited by Willes, C. J. in Hutchinson v. Sturges, Willes, 262.) there was the same resolution. (32) In debt on a bond for 767. 10s. conditioned for the payment of 381. the defendant pleaded a debt by simple contract of 701.* On demurrer, the question was, whether the penalty were the legal debt, so that the money due could not be pleaded against what was really due upon the bond. Judgment for the plaintiff in C. B. On error in B. R. Yorke, C. J. said, that the penalty of the bond was the legal debt; that one part of the stat. 2 Geo. 2. c. 22. s. 13. was to be compared with the other; and, therefore, if the defendant (as he might have done) had pleaded the general issue, and given in evidence part of the plaintiff's demand, and craved to have an allowance of so much; this would not have aided him, for the jury must find the whole, or else that it was not the parties' deed, and they could not sever the debt; so, in like manner, a lesser sum than was demanded by the plaintiff, that is, than the penalty, could not be pleaded. Judgment of C. B. affirmed. (33) Hence the defendant, in his plea, must aver what is really due; and this averment has been holden to be traversable †, although laid under a videlicet +. * Stephens v. Lofting, B. R. M. 7 G. 2. 2 Barnard. 338. + Symmons v. Knox, 3 T. R. 65. Grimwood v. Barrit, 6 T. R. 460. such action, judgment shall be entered for no more than shall appear to be due to the plaintiff, after one debt being set off against the other as aforesaid." In debt upon a bail bond, brought by the officer of the palace court, to whom the defendant had given the bond conditioned for the appearance of A. B. to answer C. D. in a plea of trespass on the case; the defendant pleaded, by way of set-off, a greater sum due to him from the plaintiff, by simple contract. On demurrer, the court gave judgment for the plaintiff; Willes, C. J. (who delivered the opinion of the court) observing, that as this was not a bond conditioned for the payment of money, the case was not within the stat. 8 Geo. 2.; and it was not within the stat. 2 Geo. 2, because the plaintiff did not sue in his own right, but in the nature of a trustee for C. D.; that it might as well be said, that when a person sued as executor, the defendant might set off a debt from the plaintiff to the defendant, in his own right, as that the defendant could set off in the present case. He added, however, that if this had been a bond to the sheriff, assigned over to the party according to the statute, the court would have thought otherwise; and that the penalty must have been considered as the debt, this not being a case within the stat. 8 Geo. 2. To debt on bond conditioned for the payment of an annuity to plaintiff", defendant pleaded, that a certain sum only was due to the plaintiff on account of the annuity, and that the plaintiff was indebted to the defendant in a larger sum of money, for money lent, &c. which he claimed. to set off; on demurrer, it was adjudged, that this was a case within the stat. 8 Geo. 2. c. 24. s. 5, and that the defendant was entitled to set off his debt. To a declaration in debt by assignees of bankrupt for money received by defendant to use of plaintiff's assignees, plea, that bankrupt before his bankruptcy was indebted to defendant in a greater sum upon an account stated between them, and that defendant was willing to allow plaintiffs to set off against such debt the debt claimed in the declaration, was holden ill on de murrer. The following rules must be attended to in pleading a setoff:-Uncertain damages, or an unliquidated demand, cannot be made the subject of a set-offy (34.) But if two per t Hutchinson v. Sturges, Willes, 26!. y Howlett v. Strickland, 1 Cowp. 56. Weigall v. Waters, 6 T. R. 488. (34) "Debts to be set off must be such as an indebitatus assumpsit will lie for." Per Ashhurst, J. in Howlet v. Strickland, Cowp. 56. |