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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 761. 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 t, although laid under a videlicet I.

* Stephens v. Lofting, B. R. M. 7 G. 2. 2 Barnard. 338. + Symmons v. Knox, 3 T. R. 65. I 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 courtt, 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 plaintiffų, 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 demurrer.

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-off v (34.) But if two pert Hutchinson v. Sturges, Willes, 26!. y Howlett v. Strickland, 1 Cowp. 56. u Collins v. Collins, 2 Burr, 820. Weigall v. Waters, 6 T. R. 488. x Groom v. Mealey, 2 N. C. 138.

(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.

sons agree to perform certain work in a limited time ?, or to pay a stipulated sum weekly, for such time afterwards as it should remain unfinished, and a bond is prepared in the name of both, but is executed by one only, with condition for the due performance of the work, or the payment of the stipulated sum weekly, such weekly payments are in the nature of liquidated damages, and not by way of penalty, and may be set off by the obligee in an action brought against him by the obligor who executed. 2ndly, A debt barred by the statute of limitations cannot be set off a; for the remedy, by way of set-off, was intended to supersede the necessity of a cross action; and a debt barred by the statute of limitations cannot be recovered by action. If such debt be pleaded, the plaintiff ought to reply the statute b. 3dly, The debts sued for, and intended to be set off, must be mutual, and due in the same right (35). A debt due to a person in right of his wife', cannot be set off in an action against him on his own bond. Under the statutes of set-off, the court can only take notice of an interest at law d. As to particulars of set-off, see ante, p.

151.

IV. Debt on Bail-bond-Stat. 23 H. 6. c. 10.-Assignment

of Bail-bond under Stat. 4 Ann. C. 16.Declaration by Assigneem Of the Pleadings ; Comperuit ad Diem -Nul tiel Record.

At common law, the sheriff was not obliged to take bail from a defendant arrested upon mesne process, unless he sued out a writ of mainprize; but, by stat. 23 H. 6. c. 10. it was enacted, “that sheriffs, under-sheriffs, bailiffs of franchises, and other bailiffs (36), should let out of prison all persons by

z Fletcher v. Dyche, 2 T. R. 32.
a Per Willes, C. J. in Hutchinson v.

Sturges, Willes, 262,
b Remington v. Stevens, Str. 1271.

c Bull. N. P. 179. cites Paynter v.

Walker, C. B. E. 4 Geo, 3. d Per Littledale, J. Tucker v. Tucker,

4 B. & Ad. 751.

(35) See cases affording an illustration of this rule, under plea of set-off, tit. Assumpsit, ante, p. 150.

(36) “ This statute does not authorize sheriffs' bailiffs to take obligations for the appearance of persons arrested: from the express mention of bailiffs of franchises, it appears that those officers them arrested or being in their custody, by force of any writ, bill, or warrant, in any action personal (37), or hy cause of indictment of trespass (38), upon reasonable surety (39) of

only are meant, who have the return of process. When, therefore, the process is directed to the sheriff, the indemnity must be to him.” Per Buller, J. in Rogers v. Reeves, 1 T. R. 422. The marshal of the King's Bench is an officer within this statute, Bracebridge v. Vaughan, Cro. Eliz. 66. ; but the Serjeant at Arms of the House of Commons is not. Norfolk v. Elliot, 1 Lev. 209.

(37), Upon an attachment of privilege, attachment upon a prohibition, attachment in process upon a penal statute, the sheriff may be compelled to take bail by force of this statute ; but not upon an attachment for a contempt, issuing out of B. R.* or C. B.T or the Court of Chancery, for disobeying a subpenat. But although the sheriff is not compellable to take bail upon an attachment out of Chancery, yet he is not prohibited by stat. 23 H. 6. from doing so; and a bail-bond so taken is good at cominon law, and may be enforced by the sheriff. Morris v. Hayward, 6 Taunt. 569. But assignee thereof cannot maintain action, it not being within stat. of 4 & 5 Ann. c. 16. Meller v. Palfreyman, 4 B. & Ad. 146. In Studd v. Acton, it was holden that the words “ by force of any writ, bill, or warrant, in any action personal,” were confined to actions at law.

(38) The sheriff is not authorized to take a bond for the appearance of persons arrested by him, under process issuing upon an indictment at the quarter sessions, for a trespass and assault; because at common law the sheriff could not bail any persons indicted before justices of the peacell, and this stat. of 23 H. 6. was not passed to enable the sheriff to take bail in cases where he could not bail before; but, in order to compel him to take bail in those cases, where he might have taken bail, and neglected so to do. At common law, the sheriff might have bailed persons indicted before him at his torn , and, consequently, by this statute he was compellable to bail such persons; but the stat. 1 Edw. 4. c. 2. having taken away the sheriff's power of bailing in such cases, the stat. 23 H. 6. is in this respect rendered of none effect.

(39) According to the opinion of Ashhurst, J. in Rogers v. Reeves, 1 T. R. 421. a security of a lower nature than a security by bond, as a simple contract undertaking, is insufficient. If the sheriff refuses to take bail, sufficient sureties being tendered, the proper remedy against him is an action of trespass on the case.

Smith v. Hall, 2 Mod. 32.

. Anon. 1 Str. 479. Resolved by all the judges.
+ Field v. Workhouse, Comyn's Rep. 264.
I Studd v. Acton, I H. Bl. 468.

Bengough v. Rossiter, 4 T. R. 505.
Il 2 Hawk. P. C. c. 15. s. 26.
Id. s. 27.

2 P

VOL. 1.

name

sufficient persons, having sufficient within the counties where such persons are let to bail, to keep their days in such place as the said writs, bills, or warrants, shall require; persons in ward by condemnation, execution, capias utlagatum or excommunicatum, surety of the peace, or by special commandment of any justice excepted. And no sheriff, &c. shall take, or cause to be taken or made, any obligation for any cause aforesaid, or by colour of their office, but only to themselves, of any person, nor by any person, which shall be in their ward by course of law, but

upon

the of their office, and upon condition that the prisoners shall appear at the day and place contained in the writ, &c.; and if any sheriffs, &c. take any obligation in other form, by colour of their office, it shall be void. The constant usage since the passing this act has been for sheriffs, and other officers, to take a security by bondf. Regularly, this bond ought to be taken with two or more sureties, at the least, the words of the statute being “ surety of sufficient persons ;" and the sheriff, &c. may insist upon two sureties being given; yet it has been adjudged, that, as the indemnity is for the protection of the sheriff, &c. he may wave the benefit, and take a bond with one surety only.

The form of surety prescribed by the statute must be strictly pursued, that is,

1st, The bond must be made to the sheriff or other officer himselfh. Hence a bond made to the sheriff's bailiff is bad.

2ndly, It must be made to the sheriff or other officer by the name of his officei and county. On error in debt on bailbond, it was excepted, that it was not shewn, that the bond was to the sheriff by the name of his office. The court were of opinion that it should so appeark; but they thought that in the present case it did sufficiently appear on the whole declaration, it being laid solvend. eidem vicecomiti et assignatis.

3dly, There must be a condition to the bond; and that condition must be for the appearance of the defendant at the day and place mentioned in the writ, &c.; and for that only. Hence, if there be not any condition?; or what amounts to the same thing, if the condition be impossible, as where the condition is for the appearance of the defendant at a day past when the bond is madem; the bond is void. So if any other condition than that prescribed by the statute is expressed in

f See note (39.)

i Noel v. Cooper, Palm. 378. g Drury's case, 10 Rep. 100. b. 101. a. k Symes v. Oakes, Str. 893.

recognised in Cotton v. Wale, Cro. 1 Graham v. Crawshaw, 3 Lev. 74. Eliz. 862.

m Samuel v. Evans, 2 T. R. 569. hi T. R. 422.

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