clearly established, as the one that the claim to be set off must be a debt and not a demand sounding in damages. Why should the legislature if it intended to make changes in both respects particularize only the one?

What is provided in the second of the added sub-sections, as to the effect of bringing in such defence of a set off or counter claim can, to my mind, make no difference. It is the first of the added sub-sections that specifies what sort of claim may be set off or set up by way of counter claim; that being provided for, the jurisdiction of the court to deal with it and the effect of its doing so is next referred to.

The contention of the defendant's counsel that such a defence could be pleaded by way of plea puis darrein continuance is met by Platt, B., in Richards v. James, 2 Exch. 471, and by Radcliffe and Kent, JJ., in Carpenter v. Butterfield, 3 Johns. Ca. 144. I have already cited some of the remarks of Radcliffe, J., upon that point. Those of Kent, J., are quite as pertinent: "The doctrine cannot universally be true that matter happening after the commencement of the suit and before plea pleaded may be set up against the plaintiff. If a man, says Coke (Co. Litt. 248b) be tenant or defendant in a real or personal action, and, hanging the suit he entereth into religion, by this the writ is not abated, because it is by his own act. So it has been determined that if a feme sole marry after writ taken out against her she cannot plead her coverture and defeat the plaintiff's writ." Many other authorities to the same effect might be cited.

The defendant's counsel refers to the authorities under the English Judicature Acts, and the fact that these sub-sections enacted by our statute are copied verbatim from Order XIX. r. 3 under the Judicature Acts, appears at first to lend a certain amount of weight to these authorities.

So far I have seen only two cases in the English reports in which the question has been directly raised. The first is The Original Hartlepool Collieries Co. v. Gibb, 5 Ch. D. 713, in which Jessel, M. R., held that under this rule a defendant could not set up a claim against a plaintiff accruing after the commencement of the plaintiff's action. This case was not accepted as authority by Fry, L. J., in Beddall v. Maitland, 17 Ch. D. 174, where a claim accruing after the commencement of the action

was allowed to be set up by the defendant by way of counter claim. It is noticeable, however, that the decision of Jessel, M.R. was given wholly upon the construction of Order XIX. r. 3, which is copied into our statute, whereas Fry, L. J., in the later case, points out that it is not from that rule, but from the 3rd sub-section of the 24th section of the Judicature Act of 1873 itself that the authority for the counter claim comes.

The words there used, Fry, L. J., points out, are "of the utmost generality," and he says "they appear to me to give an independent right to the defendant to commence an independent action against the plaintiff; and I find nothing whatever in them, either in letter or in spirit, which confines the right of the defendant to some cause of action vested in him when the plaintiff commenced his original action."

It is also noticeable that both of these cases were before single judges and, though Fry, L. J., expressly invites an appeal from his decision, the point does not yet appear to have come before a higher court. I think, however, that we may well admit that it is probable that the view of Fry, L. J., will be upheld by a higher court, as the principles which he lays down in the same case are adopted for another purpose by the Court of Appeal in McGowan v. Middleton, 11 Q. B. D. 464.

This latter case shows how different is the present system of procedure in England from that under the Common Law Procedure Act. There it was held that, though the plaintiff should discontinue his action, the defendant could still proceed upon his counter claim. In Winterfield v. Bradnum, 3 Q. B. D. 324, it was held that a defendant who admits the plaintiff's cause of action, and merely sets up a counter claim founded upon a distinct claim is not entitled to security for costs from the plaintiff resident without the jurisdiction of the court; there Brett, L. J., thought that "the true mode of considering the claim and the counter claim is that they are wholly independent suits which, for convenience of procedure are combined in one action ;" and Cotton, L. J., said "the counter claim is in the nature of a new action." Though the idea that the claim and the counter claim are to be considered as wholly independent suits is combatted in Blake v. Appleyard, 3 Ex. D. 195, yet in that case again another argument of the defendant's counsel in the case before us, that based upon the second of the subsections added by our statute,

is met where it is pointed out that the provision that the raising of " a counter claim is to have the same effect as the statement of a claim in a cross action," is controlled by the words following, "so as to enable," &c.

We can dismiss the late English authorities at once by pointing out that we have no such enactment as that in the 3rd sub-section of the 24th section of the Act of 1873, upon which Fry, L.J. bases his decision in Beddall v. Maitland; and that the rule in England was enacted in connection with the introduction of a system of practice so elastic and so different from the former practice as the instances mentioned show, whereas with us the enactment is merely applied to the old practice which is left unaltered except to the extent necessarily to be implied from the words of the enactment itself.

If we turn to the American authorities we find them, with few exceptions, in favor of the view that the subject of a set off or counter claim must be a claim which accrued due before the commencement of the plaintiff's action. Of course, the applicability of the cases depends largely upon the wording of the particular statutes under which they are decided. The Illinois statute and a decision under it seem about the most pertinent, after the New York cases.

In Illinois the statute provides that "The defendant in any action brought upon any contract or agreement express or implied, having claims or demands against the plaintiff, may plead the same," &c. In Irvin v. Wright, 1 Scam. 135, it was said: "It was contended in the argument by counsel for Irvin that our statute was more comprehensive than the English statute of set off, and therefore a claim or demand due or accruing due after suit brought may be set off. The court, however, upon an examination of the English statute of set off, are of opinion that though the phrase in our statute claims or demands' would admit of a construction that would enforce more modes of indebtedness than the phrase 'mutual debts' used in the English statute, yet in respect to the time at which the 'claims or demands' under our statute and the mutual debts' under the English statute should exist so as to be the subject of set off, the same construction as to both statutes ought to prevail."

The same view is adopted in Pettis v. Westlake, 3 Scam. 536; Kelly v. Garrett, 1 Gilm. 649.

I have already referred at length to Carpenter v. Butterfield, from the New York reports. It was decided as long ago as 1802 when yet there were very few English authorities upon the point, and it is worthy of a great deal of attention from the thorough appreciation of the principles of the common law system of practice and pleading shown in the judgments of the three members of the court. From the New York reports I might also mention particularly in favour of the same view, The Jefferson County Bank v. Chapman, 19 Johns 322. In Pennsylvania there are

the cases of Marshall v. Sheridan, 10 S. & R. 268; Morrison v. Moreland, 15 S. & R. 61; Huling v. Hugg, 1 W. & S. 418; Stewart v. U. S. Ins. Co., 9 Watts 126; Filbert v. Hawk, 8 Watts 443 ; and Metzgar v. Metzgar, 1 Rawle 227, which show how much wider is the Pennsylvania statute than the English statutes of set off. The same doctrine is upheld in Massachusetts in Greenough v. Walker, 5 Mass. 214; Bigelow v. Folger, 2 Met. 255; and in Maine in Houghton v. Houghton, 37 Me. 72; Robinson v. Safford, 57 Me. 163. Other American authorities may be found at the ends of the reports of Richards v. James, 2 Exch. 474, and Walker v. Clements, 15 Q. B. 1050, in the American editions found in the library of our Law Society and in Waterman on Set Off, pp. 78 et seq.

The argument of the defendant's counsel that the question is to be determined upon the words of the statute, that it is a remedial and beneficial enactment, and should be construed liberally, was used with much force as to the English statutes of set off, in Richards v. James, 2 Exch. 471, but it was not there considered to outweigh the considerations drawn from the nature of the system of procedure to which the defence given by the statutes had to be applied.

When we think how long in England, in Canada, and in the principal States of the neighboring Republic, it has been found consistent with the prevailing ideas of justice to retain the old system, and when we read, as in Carpenter v. Butterfield, The Jefferson County Bank v. Chapman, Irvin v. Wright, and many other authorities in the United States courts, and in Waterman on Set Off, the strong arguments that are advanced against the propriety of adopting such a practice, we may hesitate to adopt the view that the interpretation urged upon us by the defendant's counsel would necessarily and undoubtedly be a beneficial one.

For my own part I incline to think that justice will the better be done by holding parties to their bargains than by excessive anxiety to protect those who fail to meet their liabilities when they mature, upon the plea that they expect others to mature from their creditors to themselves, and that they fear that their creditors may not be able to meet the latter when they mature. It would certainly also not be just that a plaintiff who has properly and in good faith commenced an action against a defendant should be met with a claim against him, subsequently brought in by the defendant, and should in consequence be made to bear all the costs of the suit. Under our system of practice this could not be avoided, while in England, under the present system, on account of the control which the courts have over the awarding of costs, any injustice of this kind could be prevented.

I am of opinion that only a claim arising and matured before the plaintiff brings his action can be set up by way of set off or counter claim, and that, just as in Evans v. Prosser, the plea should show that it was payable before and at the commencement of the action.

The rule should, in my opinion, be made absolute to set aside the verdict for the defendant and to enter a verdict for the plaintiff for $259.10.

The Chief Justice concurred with Mr. Justice Killam.

DUBUC, J.-In England, under the C. L. P. Act, a defendant was allowed to set off against the plaintiff's demand any liquidated debt due to him by the plaintiff. But this could only have the effect of extinguishing the plaintiff's claim; and if he wanted to recover fully any excess of his claim over the plaintiff's demand, he had to resort to a cross-action. But under the Judicature Act, and the Rules of Court made thereunder, a defendant may, in case the debt set off by way of counter-claim is greater than the plaintiff's demand, recover a verdict for any balance which may be found in his favor.

The same provision is found in our statutes, 44 Vic. c. 11, s. 56, sub-sections (a) and (b), which read as follows: “(a) A defendant in any action may set off or set up by way of counterclaim against the claims of the plaintiff any right or claim, whether such set off or counter-claim sound in damages or not