No. 844.

Book 2, part 2, tit. 4, chap. 5, sec. 8, § 1, 2.

No. 847.

is due to him from the claim which is made against him, and this is called a set off.

Set off is authorized by the statute of 2 Geo. II., c. 24, the principles of which have been reenacted in this country, or have been adopted by the courts.

§ 1.-In what cases a set off is allowed.

844. A set off can take place only in actions on contracts for the payment of money, as assumpsit, debt, or covenant. The set off does not operate of itself, the defendant must plead it,(a) but he way waive his right and bring a cross action against the plaintiff.(b)

845. The demands to be set off must be mutual, and due in the same right,(c) and they must be certain, for unliquidated damages cannot be set off. (d) The claim must be good, subsisting at the time, and not barred by the act of limitation.(e)

846. Though in general the debts do not extinguish each other, yet, perhaps owing to the wording of the statutes, in some states they have that effect, and operate upon the rights of the parties before an action is brought; as in the cases when a man becomes a bankrupt or insolvent, or when he dies, the balance only can be recovered after making the proper set off.(f)

§ 2.-Between what parties a set off is allowed.

847. No set off is allowed except between the parties in the suit,(g) and when it is admitted between

(a) Northampton Bank v. Balliet, 8 Watts, 39.

(b) Hinckly v. Walters, 9 Watts, 179; 5 Taunt. 148; 2 Campb. 594. (c) Waln v. Wilkins, 4 Yeates, 461; Darrock v. Hay, 2 Yeates, 208; Hurlburt v. Ins. Co., 2 Sumner, 471; Wolfe v. Washburn, 6 Cowen, 261. (d) McKinley v. Bellows, 3 Blackf. 31; State v. Welsted, 6 Halst. 397; Hepburn v. Hoag, 6 Conn. 613.

e) Crist v. Garner, 2 Pennsylv. 251; Williams v. Gilchrist, 3 Bibb, 49. {) See Krause &. Beitel, 3 Rawle, 199; McDonald v. Webster, 2 Mass. 498; Knapp v. Lee, 3 Pick. 452.

(g) Columbia v. Harrison, 2 Rep. Const. Ct. 213; Johnson v. Bridge, 6 Cowen, 693; Gregg v. James, Breese, 107.

No. 848.

Book 2, part 2, tit 4, chap. 5, sec. 9, 10.

No. 849.

them, it must be in the same right; a claim against the plaintiff in a representative capacity, cannot, therefore, be set off in a suit brought in an individual capacity.(a) Nor can a claim against the intestate's estate, which arose since his death, be set off in an action by the administrator.(b)

SECTION 9.-OF EXTINGUISHMENT OF A CONTRACT BY LAPSE OF TIME.

848. Time does not usually annihilate a contract, for when one becomes bound he is so until the contract is performed, or he is otherwise discharged, not only himself, but his heirs, executors, and administrators. But a contract may be made by which the contractor may bind himself only for a certain time; as, for example, to become security for a club for one year; to perform service for one year. In all contracts after the end of the time, the party is discharged, unless he has before the expiration of the time broken his contract, and in that event he is liable for damages.

SECTION 10.—OF THE DISCHARGE OF THE CONTRACT BY NEGLECT TO GIVE NOTICE.

849. In nearly all contracts the debtor remains bound, although he has no notice of the breach of the contract by one for whom he is surety. If you become surety that another shall pay me for goods he bought of me, and at the time appointed for the payment he fails to pay, you are still bound to me, although I have given you no notice. But a different rule is observed in relation to endorsers of commercial paper; on failure of payment of a bill of exchange by the acceptor, notice must be given to the drawer and endorsers, and if a promissory note be not paid at maturity, such a notice must be given to the endorsers, or they will be discharged.

(a) Grew v. Burditt, 9 Pick. 265; Prewettit v. Marsh, 1 Stew. & Port. 17. (6) Fry v. Evans, 8 Wend. 530. See Beale v. Coon, 2 Watts, 183.

No. 850.

Book 2, part 2, tit. 4, chap. 5, sec. 11, § 1.

No. 851.

SECTION 11.-OF THE LEGAL BARS WHICH MAY BE INTERPOSED AGAINST THE RECOVERY OF A DEBT.

850. Sometimes it happens that although a debt has not been paid, it cannot be recovered by action; the law has interposed a perpetual objection to its recovery, by taking away the remedy, which interposition is called a bar: exceptio peremtoria. (a) These bars arise from, 1, the act of limitations; 2, lapse of twenty years; 3, discharge of a defendant who has been arrested under a capias ad satisfaciendum; 4, bankruptcy.

§ 1. Of the bar arising from the acts of limitations.

851. It is a maxim of the common law that a right never dies, and doubtless this is consonant with justice; but in the management of human affairs, it is extremely difficult to retain the evidence of the payment of a debt. Accidents may destroy it, if it be in writing, and death will bury it in the tomb with the witness, when we depend upon verbal proof. To remedy these evils the statutes of 32 H. VIII., c. 2, and 21 Jac. I., c. 16, were passed in England, by the latter of which it was enacted, That

66

"§ 3. All actions of trespass quare clausum fregit, all actions of trespass, detinue, action sur trover, and replevin, for taking away of goods and cattle, all actions of account and upon the case, other than such accounts as concern the trade of merchandise, between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty, all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them which shall be sued or brought, shall be commenced and sued within the time and limitation expressed, and not after (that is to say) the said actions upon the case (other than for slander) and the said actions for account, and the said actions

(a) Co. Litt. 303 b; Steph. Pl. Appx. xxviii.

No. 851.

Book 2, part 2, tit. 4, chap. 5, sec. 11, § 1.

No. 851.

for trespass, debt, detinue, and replevin, for goods or cattle, and the said action of trespass, quare clausum fregit, within six years next after the cause of such action or suit, and not after, and the said actions of trespass, of assault, battery, wounding, and imprisonment, or any of them, within four years next after the cause of such actions or suit, and not after, and the said actions upon the case for words within two years next after the words spoken, and not after.

"§ 4. If in any one of the said actions or suits judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ or bill, or if any of the said actions be brought by original, and the defendant therein be outlawed, and shall after reverse the outlawry, that in all such cases the party, plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit from time to time, within a year after such judgment reversed, or such judgment given against the plaintiff or outlawry reversed, and not after.

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"§ 5. In all actions of trespass quare clausum fregit, hereafter to be brought, wherein the defendant shall disclaim in his plea to make any title or claim to the land in which the trespass is by the declaration supposed to be done, and the trespass is by negligence or involuntary, the defendant shall be permitted to plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for such trespass before the action brought, whereupon or upon some of them the plaintiff shall be enforced to join issue, and if the said issue be found for the defendant, or the plaintiff shall be nonsuited, the plaintiff shall be clearly barred from the said action or actions, and all other suits concerning the

same.

"§ 6. If any person shall be entitled to any such

No. 852.

Book 2, part 2, tit. 4, chap. 5, sec. 11, § 1, art. 1.

No. 854.

action of trespass, detinue, action sur trover, replevin, actions of accounts, actions of debt, actions of trespass, for assault, menace, battery, wounding or imprisonment, actions upon the case for words, be or shall be at the time of any such cause of action given or accrued, fallen or come within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person shall be at liberty to bring the same actions, so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, of sane memory, at large and returned from beyond the seas, as other persons having no such impediment would have done."

This statute, with many modifications, has been reenacted in the several states; its general principles have been retained in those states where the common law has prevailed over the civil law. In Louisiana a system assimilating to the civil law has been adopted. This subject will be considered under four heads: 1, in what cases the action will be barred; 2, by what law the contract will be barred; 3, when the right of action accrued; 4, when the statute may be avoided.

Art. 1.-In what cases the action will be barred.

852. It is a general rule that all contracts founded on specialties are not within the statute. The statute applies to actions of account, upon the case, and of debt grounded upon any lending or contracts without specialty; and all actions of debt for the recovery of arrearages of rent which shall not have been commenced and sued within six years next after the cause of such action or suit.

853. Although the words of the act do not carry expressly an action of assumpsit, yet the courts have construed its provisions to extend to cases within the

same reason.

854. The statute applies also to an action of debt