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Act of December 17, 1789, ch. 39, 13 Stat. Larg. 53. R. C. ch. 105.

and their heirs, executors, administrators and assigns, for such estate or interest as shall be so limited or appointed, devised or disposed, until such debt or debts, portion or portions, shall be raised, paid and satisfied; any thing in this act contained to the contrary notwithstanding. Ibid. § 4.

5. § 5. And whereas several persons, being heirs at law, to avoid the payment of such just debts, as, in regard of the lands, tenements and hereditaments, descending to them, they have by law been liable to pay, have sold, aliened, or made over such lands, tenements or hereditaments, before any process was or could be issued out against them:

6. § 6. Be it further enacted, That in all cases where any heir at law shall be liable to pay the debt of his ancestor in regard of any lands, tenements or hereditaments, descending to him, and shall sell, alien or make over the same, before any action brought, or process sued out against him, such heir at law shall be answerable for such debt or debts, in an action or actions of debt, to the value(d) of the said land so by him sold, aliened or made over; in which cases, all creditors shall be preferred, as in actions against executors and administrators; and such execution shall be taken out upon any judgment or judgments so obtained against such heir, to the value of the said land, as if the same were his own proper debt or debts, saving that the lands, tenements and hereditaments, bona fide aliened before the action brought, shall not be liable to such execution. Ibid. § 5.

7. § 7. Where any action of debt upon any specialty is brought against any heir, he may plead riens per discent at the time of the original writ brought or the bill filed against him, any thing herein contained to the contrary notwithstanding; and the plaintiff in such action may reply that he had lands, tenements or hereditaments from his ancestor, before the original writ brought, or bill filed; and if upon issue joined thereupon, it be found for the plaintiff, the jury shall enquire of the value of the lands, tenements or hereditaments so descended, and thereupon judgment shall be given, and execution shall be awarded as aforesaid; but if judgment be given against such heir by confession of the action, without confessing the assets descended, or upon demurrer, or nihil dicit, it shall be for the debt and damages, without any writ to enquire of the lands, tenements or hereditaments, so descended. Ibid. § 6.(1)

8. § 8. All and every devisee and devisees made liable by this act, shall be liable and chargeable in the same manner as the heir at law(e) by force of this act, notwithstanding the lands, tenements and hereditaments, to him or them devised, shall be aliened before the action brought. lbid. § 7.

(d)(e) As it respects the obligations of the heir and devisee, this act places them exactly in the same situation; making them personally responsible, after alienation of the estate, as if they still held it; and discharging bona fide purchasers under them from all liability. Mathews v. Jones et al. 2 Anstr. Ex. Rep. [506, 515;] and 3 vol. Prest. on Abst. 339.

(1) In an action against an heir, he plead no assets by descent, nor at the time of the writ issued, nor at any time since, except a tract of 107 acres of land," and issue is joined on the replication, that he had sufficient other lands by descent; and the jury find for plaintiff the debt and one penny damages; a peremptory judgment will be rendered thereon. Cohoons v. Purdie, 3 Call, 431.

On a bill against an heir at law, to subject

real estate descended, to a debt of the ancestor, the heir at law is not accountable for rents and profits accrued before decree. Lawrence v. Blow, 2 Leigh, 29, 58; Shatelworth v. Neville, 1 D. & E. 454, 457; Alston v. Munford, 1 Brock. R. 285; Blackhouse's adm'r v. Jett's adm'r, 1 Brock. R. 500, 515. In such case the chancellor may decree a sale of the land out and out, to satisfy creditor's demands. Lawrence v. Blow, 2 Leigh, 29, 58.

No judgment against the executor can bind the heirs or devisees, or in any manner affect them. It cannot be given in evidence against them. Mason's devisees v. Peters's adm'rs, 1 Munf. 437. This is understood to be the settled law of Virginia. Pr. Marshall, C. J. in Deneale v. Stump's ex'r, 8 Peters, 528, 531; and Alston v. Munford, 1 Brock. R. 266.

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1. § 1. When any suit shall be commenced and prosecuted in any court within this commonwealth, for any debt due by judgment, bond, bill, or otherwise, the defendant(1) shall have liberty, upon trial thereof, (a) to make all the

*See act of April 16, 1831, Sess. Acts 1830-31, c. 11, § 62-3, p. 62; Sup. R. C. c. 106, § 62-3, p. 157, 159; whereby special pleas in bar in the nature of a plea of setoff may be filed.

(1) The plaintiff in replevin is a defendant within the operation of this act, but the defendant (the avowant) is not. Turberville v. Self, 4 Call, 580.

(a) It has always been the practice, (under this law,) and very properly so, to allow discounts up to the time of trial; but not so as to destroy the plaintiff's action, and entitle the defendant to costs. Hudson v. Johnson, 1 Wash. 10; Ritchie et al. v. Moore et al. 5 Munf. 395, or so as vexatiously to perplex or delay the plaintiff, it being improper for a debtor, after suit instituted, to buy or trump up unliquidated and disputed claims against his creditor, in order to discount them. Alexander v. Morris et al. 3 Call, 105. Such a procedure will not be allowed even in equity. Dangerfield v. Rootes, 1 Munf. 529. [See post. No. 2.]

If the set-off reduce the plaintiff's demand below the court's jurisdiction, the court may nevertheless enter up judgment for plaintiff. Pitts v. Carpenter, 2 Stra. 1191, I Wils. 19, S. C.; Maitland v. M'Dearman, Virg. Cas. 131. But if the plaintiff's demand is reduced by payments below the court's jurisdiction the court cannot enter judgment. Larrow v. Harding's adm'r, gen. ct. June T. 1820; and see Clark v. Askew, 8 East. 28; Horn v. Hughes, ibid.

347.

Are the provisions of the preceding laws, so far as they relate to the nature of the debt or cause of action, more comprehensive than the English statutes of 2 Geo. 2, c. 22, and 8 Geo. 2, c. 24? If the suit be for unliquidated or uncertain damages, founded on a tort or breach of covenant, the defendant

(in England) would not be permitted to setoff a debt due him by plaintiff. And, if the suit be founded on a certain demand, the defendant cannot set-off unliquidated or uncertain damages founded on a tort or breach of covenant on the part of the plaintiff. See Howlet et al. v. Strickland, 1 Cowp. 56; Gordon v. Browne, 2 Johns. R. 155; Duncan v. Lyon, 3 Johns. Ch. R. 357; Kachlein et al. v. Ralston et al. 1 Yeates, 571, 2 Dall. 237, S. C. Unliquidated damages for a substantive injury, cannot be set-off, either at law, or in equity, against a legal demand. 6 Rand. 519, Webster v. Couch; Sherman v. Ballow, 8 Cowen, 304; Hepburn v. Hoag et al. 6 Cowen, 613; Tuttle v. Tompkins, 2 Wendell, 407; Christian et ux. & al. v. Miller ass. 3 Leigh, 78; Harrison v. Wor tham & Magruder, 8 Leigh, 296.

But where plaintiff declares on a quantum meruit for work and labour done, and materials found, it is competent to the defendant, without notice to the plaintiff, to prove that the work done was not worth so much as the plaintiff claims. Basten v. Butter, 7 East. 479; or that it was not worth any thing. Denew v. Daverell, esq. 3 Campb. Cas. 451: And see on this subject, Beeckers v. Vrooman, 13 Johns. R. 302; Grant v. Button, 14 Johns. R. 377; Still v. Rood, 15 Johns. R. 230; Miller v. Smith, 1 Mason, 437; Heck v. Shener, 4 Serg. & Raw. 249; Spaulding v. Vandercock, 2 Wendell, 431. Can damages arising from a breach of warranty, without fraud, be given in evidence, on notice, in an action of assumpsit for a specific price, which defendant agreed to pay? See Thornton v. Wynn, 12 Wheaton, 183; Poulton v. Lattimore, 9 B. & C. 259; Reab v. M'Alister, 4 Wend. 483; 8 Wend. 109, in Err.

In Crowninshield v. Robinson et al. 1 Mason, 93, it was decided, that, in an action

Act of December 29, 1806-May 1, 1807. R. C. ch. 127.

discounts(e) he can against such debt; and upon proof thereof, the same shall

for damages for negligence, founded on the breach of a special contract for care and diligence, the defendant will not be permitted to deduct from the damages, the compensation, which he claims for his care and diligence. Such compensation, if any be due, must be sought in a distinct action.

A debt due from an individual partner cannot be set-off against a partnership demand. Scott v. Trents, 1 Wash. 77, 79; Armistead v. Butler's adm'r, 1 H. & M. 176. And a debt to an individual partner, cannot be set-off against a demand on the partnership. Ritchie et al. v. Moore et al. 5 Munf. 396; Ladire &c. v. Hart, 4 Wend. 583. Joint and separate demands cannot be set-off against each other; nor can partnership and individual demands be set-off against each other. Porter v. Nekervis, 4 Rand. 359. In this case it was attempted to set-off a joint debt; and a distinction was taken in the argument, between joint debts and partnership debts. Carr, J. remarked, in delivering his opinion, that as none of the cases acknowledge such distinction; as no authority, or even dictum, was cited in support of it, and as he could see no difference in reason between the two cases, he was for abiding by the decisions. The other judges concurred. See Slipper et al. v. Stidstone, 5 T. R. 493; and French v. Andrade, 6 T. R. 582, for the effect of survivorship. A debt due to a defendant as a surviving partner may be set-off against a demand on him in his own right. 5 T. R. 493. A debt due from the plaintiff, as surviving partner, to the defendant, may be set-off against a debt due from the defendant to the plaintiff in his own right. 6 T. R. 582.

And, though a demand on a partnership, cannot be set-off against the individual demand of one of the firm, yet the partnership creditor, may charge that member of the firm, to whom he is indebted, in equity, for so much of the surplus of the partnership property, as may be due to such partner, on a settlement of the partnership accounts, in extinguishment of the said debt; for the purpose of which settlement, and also to ascertain and adjust his own demand against the firm, all the members thereof should be made defendants to his bill. Dunbar v. Buck et al. 6 Munf. 34; and see Addis v. Knight, 2 Merivale, 117; Vulliamy v. Noble et al. 3 Merivale, 618; Leeds et al. v. The Marine Ins. Co. 6 Wheat. 565.

"I take the general doctrine as to set-off to be the same in equity as at law, joint debts cannot be set-off in equity, any more than at law, against separate debts, unless there be some other circumstances calling for the equitable interference of the court. In other words, there must be some equitable circumstances to entitle a party to a

set-off, which cannot be reached at law." Pr. Justice Story, in Jackson v. Robinson et al. 3 Mason, 138, 145; and see Gilliat v. Lynch, 2 Leigh, 493; and Green v. Darling, 5 Mason, 208; Howe et al. v. Sheppard, 2 Sumn. 409, 412.

The lessee of an executor cannot set-off against the executor's demand for rent, judgments obtained against the executor for debts due by his testator. White et al. v. Bannister's er'rs, 1 Wash. 166; and see Shipman v. Thompson, Willes's Rep. 103, and the cases in note (a) p. 264.

An administratrix advertised the property of her intestate for sale, and agreed to allow five per cent. discount to purchasing creditors; the defendant (not a creditor,) purchased, and gave his bond to the administratrix, as administratrix, who instituted an action thereon in the debet and detinet; the defendant pleaded payment, and offered to `set-off against his bond, bonds due from the intestate, acquired by him subsequent to the institution of the suit. The defendant not being a purchasing creditor, was held not to be within the terms or spirit of the advertisement, and independent thereof, the bonds were clearly inadmissible. Brown's adm'x v. Garland et al. 1 Wash. 221, 224; and see Dale et al. ex'rs v. Cooke, 4 Johns. Ch. R. 11, 13; Root v. Taylor, 20 Johns. R. 137, and the authorities cited.

An obligor in a bond, taken by an adm'r for proceeds of his sales of his intestate's estate, cannot set-off debts due him from the adm'r individually, against the demand on the bond, either at law or in equity; nor can he set-off debts due him from the intestate, nor his claim as one of the distributees of the intestate's estate; since to allow such set-offs, would involve the necessity of taking an account of the assets, in every case in which the adm'r asserts a demand on behalf of the estate, and might subject the adm'r to a devastavit, if a mistake should be made. Pulliam v. Winston et al. 5 Leigh, 324.

Upon a plea by the assignor that the action against him did not accrue within five years, it is found that though the debt originally due from the obligor, has been discharged by payments to and set-offs against the assignor, yet the assignee did not know until after judgment in his suit against the obligor, that nothing was due; and it is also found that five years have not elapsed since the judgment: Held, That as part of the debt was discharged by a set-off, it was only the judgment which established the set-off as payment, and until that judgment was rendered, the action did not accrue against the assignor. Scates v. Wilson & Edmunds, 9 Leigh, 473.

(e) W. G. having contracted a debt to a bank, by note payable sixty days after date,

Act of December 29, 1806-May 1, 1807. R. C. ch. 127.

be allowed in court. Feb. 1644-5, act 16, 1 Stat. Larg. 296; Mar. 1645-6, act 11, Ib. 314; Mar. 1657-8, act 36, lb. 449; Mar. 1661-2, act 94, 2 Stat. Larg. 110; Oct. 1705, c. 34, 3 Stat. Larg. 378; May 1730, c. 5, § 10, 4 Stat. Larg. 275; Oct. 1748, c. 33, 6 Stat. Larg. 87.

Act of February 26, 1819-January 1, 1820. R. C. ch. 128.

2. § 87. In every action in which a defendant shall desire to prove any payment or set-off, he shall file with his plea(b) an account, stating distinctly the nature of such payment or set-off, and the several items thereof; (c) and in failure to do so, he shall not be entitled to prove before the jury, such payment or set-off, unless the same be so plainly and particularly described in the plea, as to give the plaintiff full notice of the character thereof.(1) Rev. 1819.

discounted by the bank for his accommodation, dies before the note comes to maturity, having on deposit in the bank, at the time of his death, a sum exceeding the amount of the note: Held, That, in case W. G.'s estate prove insolvent, the bank has a right in equity, to retain the amount of the note, out of the deposit money, whether there be debts of W. G. of superior dignity to the debt he owed the bank, or not, equity, in such case, regarding the bank as debtor to W. G. only for the excess of his money on deposite, above the amount of the note. Ford's adm'r v. Thornton, 3 Leigh, 695.

(b) Therefore, under this amendment, the discount or set-off, must be the property of defendant at time of plea pleaded. The English rule is, at the commencement of the suit. Evans v. Prosser, 3 T. R. 186.

(c) Notices of set-off. Ld. Hardwicke, C.

J. said, these notices should be almost as certain as declarations; the legislature designed them to be in the nature of cross actions, and they should be expressed with great certainty, that the plaintiff might be able to make a proper defence to them. Towler v. Jones, Buller's N. P. 179; 1 Sellon's Prac. 329.

(1) See Lediard v. Boucher, 7 Car. & P. 1; Shirley v. Jacobs, Ib. note, and 2 Bing. N. C. 88.

What essential to constitute a LEGAL TENDER. See Thomas v. Evans, 10 East. 101; Kraus v. Arnold, 7 J. B. Moore, 59.

By the act of April 3, 1838, c. 95, § 3, p. 74, the statute of limitations is deemed and taken to apply to the case of any debt on simple contract alleged by way of set-off, on the part of any defendant, either by plea, notice or otherwise.

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Act of February 17, 1827, Ses. Acts, 1826-7, ch. 23, p. 21. Sup. R. C. ch. 165, p.

222.

1. 1. The superior courts of chancery within this commonwealth, shall have jurisdiction to hear and determine suits for the dissolution of marriage, where the causes alleged therefor shall be natural or incurable impotency of

(1) See Burtis v. Burtis, 1 Hopk. Ch. R. 557; Wood v. Wood, 2 Paige, 109; Smith v. Smith, 4 Paige, 432.

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Act of February 17, 1827, Ses. Acts, 1826-7, ch. 23, p. 21. Sup. R. C. ch. 165, p. 222. body at the time of entering into the matrimonial contract; idiocy, bigamy; and in such suits, upon full and satisfactory evidence, independent of the confession or admissions of either party, they shall have power by definitive sentence to pronounce and decree the marriage to be null and void. Such suits shall be prosecuted according to the rules of proceeding in said courts, except that the defendant shall not be compelled to answer upon oath, and that the bill shall in no case be taken for confessed; but if the defendant shall fail to answer, the cause shall be set for trial, and the court may proceed to decide it upon the evidence adduced: Provided however, That nothing in this act contained shall be so construed as to give any validity to marriages which are void in law.

2. § 2. The superior courts of chancery shall have cognizance of matrimonial causes, on account of adultery, cruelty, and just cause of bodily fear; and in such cases may grant divorces a mensa et thoro in the usual method of proceeding in those courts.

3. 3. In granting divorces a mensa et thoro, for causes which justify such divorces by the principles of the common law, the court of chancery shall have full power to decree perpetual separation and protection to the persons and property of the parties, to decree to either, out of the property of the other, such maintenance as may be proper; (a) to restore to the injured party, as far as practicable, the rights of property conferred by the marriage on the other; and so to dispose of the custody and guardianship, and provide for the maintenance of the issue of the marriage, as under all the circumstances may seem right. A decree of perpetual separation from bed and board, shall have the same effect upon the rights of property which either party may acquire, after the decree, and upon the personal rights which either may enjoy after such decree, as a divorce, a vinculo matrimonii, would have, save only that no such decree of separation from bed and board, shall authorize either party to marry again during the lifetime of the other, and that another marriage, after such decree, shall expose the offender to the same pains and penalties as if such decree had never been made.

4. 4. Every person intending to petition the general assembly for a divorce, shall file in the clerk's office of the superior court of law for the county in which he or she may reside, a statement of the causes on which the application is founded, of which, at least two months before the next court, notice shall be given to the adverse party by personal service, where he or she resides in the commonwealth, or if not a resident therein, by publication for four weeks in some newspaper printed in the city of Richmond, requiring his or her attendance thereat: and thereupon the court, without other pleadings in writing, shall cause a jury to be impannelled to ascertain the facts set forth in said statement, and their verdict shall be recorded: Provided, That the confession of the parties shall not be taken as evidence in the trial. A certified copy of which proceedings shall accompany every petition for divorce presented to the legislature, unless a divorce from bed and board shall have been previously granted by a court of chancery, in which case a copy of the record thereof shall accompany such petition.

5. § 5. The costs in suits for divorce shall be the same as in other suits in chancery, and may be adjudged against either party according to the discretion of the chancellor and the fees to the officers and witnesses in the supe

(a) A court of chancery has power to grant alimony to a wife even without a contract for separation, where the misconduct of the husband is such as to render it unsafe for the wife to live with him, or

where he turns her out of doors without a support. Almond v. Almond, 4 Rand. 662; and see Purcell v. Purcell, 4 H. & M. 507. See Story's Eq. 2 vol. 647, § 14221423, &c.

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