The acknowledgment intended under this section is not such an acknowledgment as is required for simple contracts, which must import a promise to pay and create a new cause of action; but any acknowledgment of the existence of the debt, whether it does or does not amount to a promise to pay, is sufficient, and enables the creditor to bring his action for the original debt, within twenty years after such acknowledgment (a). And as it is not necessary that the acknowledgment should be such as to import a promise to pay the creditor, it seems that an acknowledgment made to a third person would be sufficient to satisfy the purpose of the statute and to revive a specialty debt (b). Where the party originally liable, the debtor himself, is dead, there may be three parties, each of whom is liable to the claims of a specialty creditor, the executor in respect of the personalty, the trustees in respect of the real estate devised for payment of debts, and the beneficial devisee in respect of the real estate beneficially devised; and upon the language of the Act it has been decided that each of them is a party liable within the meaning of the 5th section; and that a payment or an acknowledgment by any one of them is a payment by the party liable by virtue of the specialty, and entitles the creditor to bring his action against all the parties liable within twenty years after such acknowledgment (c). The renewal of liability under this section applies only to money remaining unpaid and acknowledged to be due, and not to liability for breaches of covenants, or of conditions of bonds, not resulting in money debts (d). With respect to acknowledgment and payment by one of Renewal by several joint debtors, the law formerly was that acknow- one of joint ledgment or payment by one revived the debt against all (e); (a) Moodie v. Bannister, 4 Drew. 432; 28 L. J. C. 881; ante, p. 532. (b) Moodie v. Bannister, supra ; ante, p. 533; and see Howcutt v. Bonser, 5 Ex. 491, 500; Forsyth v. Bristowe, 8 Ex. 347; 22 L. J. Ex. 255. (c) Per Kindersley, V.C., Coope v. Cresswell, L. Rep. 2 Eq. 106; 35 L. (d) Blair v. Ormond, 17 Q. B. 423; (e) Whitcomb v. Whiting, Doug. 652; 1 Smith, L. C., 5th ed., 555; Perham v. Raynal, 2 Bing. 306. debtors. Renewal by one of joint debtors. Capacity of party to renew debt. and where several persons were jointly and severally liable for the same debt, the acknowledgment or payment of one revived not only the joint liability, but also the several liability of each (a). Lord Tenterden's Act, 9 Geo. IV. c. 14, s. 1, enacted 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 chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them :-provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever." The effect of a payment in renewing the liability of a joint debtor remaining unaltered by this enactment (b), by the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 14, it was enacted, in reference to the provisions of the Acts 21 Jac. I., c. 16, s. 3, and 3 & 4 Wm. IV., c. 42, s. 3, that "when there shall be two or more co-contractors or co-debtors, whether bound or liable jointly only or jointly and severally, or executors or administrators of any contractor, no such co-contractor or co-debtor, executor or administrator, shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of payment of any principal, interest, or other money, by any other or others of such co-contractors or co-debtors, executors or administrators" (c). As an infant may contract a debt for necessaries supplied to him during infancy, so he may, during infancy, renew his liability for such debt and take it out of the operation of the Statute of Limitation (d). A married woman, being incapable of contracting, is incapable of making a new promise to renew her liability for (a) Burleigh v. Stott, 8 B. & C.36; (b) Wyatt v. Hodson, 8 Bing. 309. C. 699; 32 L. J. Ex. 118. (d) Willins v. Smith, 4 E. & B. 180; S. C. nom. Williams v. Smith, 24 L. J. Q. B. 62; ante, p. 232. a debt incurred by her before marriage; accordingly, an acknowledgment of the debt made by a joint contractor with her during the marriage was held not to renew the joint debt (a). So, payment of interest by the wife during the marriage, without the privity of her husband, was held not to renew such debt as against the wife or against the husband separately; but it was said that such payment, if made by the husband or with his authority, might support the inference of a promise by him to pay the debt in consideration of forbearance (b). By the common law if two persons were mutually indebted Right of in distinct debts no right of set-off existed independently of set-off. agreement; a set-off of the debts could be effected only by special agreement made by the parties for that purpose. The rule of equity followed the law, unless there was some peculiar connection between the debts, beyond the mere fact they were mutual, on which the relief could be founded (e). According to Lord Mansfield, "natural equity says, that cross demands should compensate each other, by deducting the less sum from the greater; and that the difference is the only sum which can be justly due. But positive law, for the sake of the forms of proceeding and convenience of trial, has said that each must sue and recover separately, in separate actions" (d). Set-off. This natural equity was first recognized by positive law in Statutes of the case of the bankruptcy of one of the parties mutually indebted, in order to obviate the hardship of the other party having to pay his debts in full to the assignees of the bankrupt, whilst he had a claim against the bankrupt for debts of (a) Pittam v. Foster, 1 B. & C. 248. (b) Neve v. Hollands, 18 Q. B. 262; 21 L. J. Q. B. 289. (c) Story, Eq. Jur. §§ 1434, 1435; see Ex p. Stephens, 11 Ves. 24. (d) Green v. Farmer, 4 Burr. 2214, 2220; and see Collins v. Collins, 2 Burr. 820, 826. Statutes of an equal or greater amount for which he would only be entitled to a dividend under the bankruptcy (a). set-off. The right of set-off applicable to debts in general was first given by the statute 2 Geo. II. c. 22, s. 13, which enacted that" where there are mutual debts between the plaintiff and the 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. This enactment was made perpetual by the statute 8 Geo. II. c. 24, s. 4, and by s. 5 of that statute it was further enacted "that mutual debts may be set against each other, notwithstanding that such debts are 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-off 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 shown how much is truly and 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 truly and justly due to the plaintiff, after one debt being set against the other as aforesaid." The right of set-off given by the statute arises only in case of an action brought by one of the parties to the mutual debts; in such action the defendant may set-off debts due to him from the plaintiff in discharge of an equal amount of the debt sued for, and, if the debts thus set-off are equal to the whole amount of those claimed by the plaintiff, there is a complete defence to the action. By a rule of Court the defence of a set-off must be specially pleaded, otherwise the defendant is not allowed the benefit of it (b). A set-off cannot be made available except by plea in an action. A debtor is not entitled to apply a set-off in reduction (a) See the statutes 4 Anne, c. 17, s. 11, and 5 Geo. II, c. 30, s. 28, reenacted in the same terms by the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, s. 171, cited, post, p. 553. (b) 8 Reg. Gen. T. T. 1853; Graham v. Partridge, 1 M. & W. 395. of the amount of his debt, and tender the balance only (a). So, a debtor is not entitled to apply a set-off against a debt for which his creditor holds a lien on property, so as to discharge the property from such lien (b). The defendant in an action is not obliged to avail himself of a set-off to which he may be entitled; he may reserve it for the subject of a cross action; or he may avail himself of it, by way of set-off, in any subsequent action which the plaintiff may bring against him (c). So, a set-off in respect of an equitable debt which might have been pleaded to an action at law for defence on equitable grounds may be reserved, and asserted in a subsequent proceeding in a Court of Equity (d). The set-off must be due at the time of action brought, and continue due until the time of trial. Debts accruing due after the commencement of the suit are not within the statute, and cannot be pleaded in bar of the further maintenance of the action (e); as a promissory note falling due (f), or a judgment recovered, after the commencement of the suit (); and the debt must continue due up to the time of the trial (h). Where a debt accrued due from the plaintiff to the defendant after judgment recovered in the action, a Court of Equity refused an injunction to restrain proceedings on the judgment on the ground of set-off (i). The right of set-off exists solely by force of the statute, What debts and, therefore, only in cases, according to the words of the may be the subject of statute," where there are mutual debts between the plaintiff set-off. and the defendant." In construing the statute the rule has been laid down, that it applies only where the claims on both sides are liquidated debts, or money demands, which can be |