Sec 1018

When a debt barred by the statute of limitations is put in evidence by the defence, the plaintiff, according to the English practice, must specially plead the statute in reply, if the object is to dispute the debt on that ground.8 The set-off is good, so far as the statute is concerned, if the debt was not barred at the time of the commencement of the suit.9 The statute is met in such cases in the same way that it is met when it is set up by plea. The defendant may show that the plaintiff acknowledged the debt which is the subject of the set-off.10 - The date of items in a set-off is not conclusive, but may be explained by parol.11

Only actionable debts can be set off.

To set-off barred by statute of limitations, statute must be specially pleaded.

Paul, 1 Penn. Sup. Ct. 380, it was said: "It is certainly well settled law that a defendant's right to a set-off must be perfect at the time the suit is instituted. We know of no doctrine of equitable set-off which dispenses with this rule. A surety has an action against his principal before being actually compelled to pay the money, because he could file a bill in equity for indemnity. But there can be no action for contribution between co-sureties, either at law or in equity, until the surety is obliged to pay the debt." Per curiam.

1 Rawley V. Rawley, L. R. 1 Q. B. D. 460.

2 Infra, sec 1018.

3 Sennett V. Johnson, 9 BeaV. 335. 4 Peabody V. Southgate, 5 Pick. 1;.

Braynard V. Fisher, 6 Pick. 355; Collins V. Allen, 12 Wend. 356; though see Lock V. Miller, 3 St. & P. 13.

5 Satterlee V. Ten Eyck, 7 Cow. 480; Turner V. Satterlee, 7 Cow. 481; Metz-gar V. Metzgar, 1 Rawle, 227; Bell V. Cowgill, 1 Ashm. 8.

6 Ramsey's App., 2 Watts, 228.

7 Gilman V. Van Slyck, 7 Cow. 469; infra, sec 1021.

8 Leake, 2d ed. 1007; Chappie V. Durston, 1 C. & J. 1; see Reed V. Marshall, 90 Penn. St. 345.

9 Walker V. Clements, 15 Q. B. 1046; Taylor V. Gould, 57 Penn. St. 152.

10 Rawley V. Rawley, L. R. 1 Q. B. D. 460.

11 McEwing V. James, 36 Oh. St. 152; Wh. on EV. sec 977.

Sec 1019

A debt from the plaintiff to the defendant, not due until after the beginning of the suit, cannot be received in evidence by way of set-off.1 Such a debt cannot be introduced under a plea puis darrein continuance,2 even in cases where the liability was incurred prior to suit, if it has not accrued prior to suit.3 Nor can it be used as a basis for an injunction.4 The fact, however, that the set-off did not become due until after the debt to which it is offered as a set-off, does not in any way affect its admissibility.5

Sec 1020

The set-off must not only have been due at the time of the commencement of the suit, but must continue due at the time it is offered in evidence. If it has been paid,6 or if it has been assigned to another party,7 it cannot be received in evidence. It has a fortiori been held that a set-off must be in force as such when pleaded.8 - The same rule exists with regard to counterclaims. - In a case before the supreme court of Pennsylvania, in 1881, the defendants to an action brought for the price of coke, on November 29,1879, pleaded as a set-off or counterclaim damages from the breach of a contract for the sale of coke, such contract being in writing, dated November 11, and beginning to run December 1, 1879. It was proved that the plaintiffs, on November 19, six days after the making of the contract, notified the defendants that they would not make any deliveries under it. On December 4, 1879, they wrote the plaintiffs they were ready to receive the coke and make payment therefor; that if shipments were not made they would buy in the open market, and hold the plaintiffs responsible for any difference in price they would have to pay, etc., etc. It was held that even if the plaintiffs did not fulful the contract for the sale of coke, there was, at the time of the commencement of the action, no breach, and defendants had no right of set-off on that account. "Nor does it help the defendants that when the cause was tried the breach was complete. The date of the commencement of the suit is the obvious test in such cases."1

Debts not due at date of suit cannot be set off.

Debts must be due at the time of trial.

1 Leake, 2d ed. 1008; Hutchinson V. Read, 3 Camp. 329; Evans V. Prosser, 3 T. R. 186; Gladstane's case, L. R. 1 Ch. 538; Houghton V. Houghton, 37 Me. 72; Carpenter V. Butterfield, 3 Johns. Ca. 145; Morrison V. Moreland, 15 S. & R. 61; Huling V. Hugg, 1 W. & S. 418; Smith V. Ewer, 22 Penn. St. 116; Stewart V. Ins. Co., 9 Watts, 126; Mizzell V. Moore, 7 Ired. 225; Haugh-ton V. Leary, 3 DeV. & B. 21; Walker V. McKay, 2 Metc. (Ky.) 294; Carprew V. Canavan, 4 How. Mass. 370; Brazel-ton V. Brooke, 2 Head, 194.

2 Richards V. James, 2 Ex. 471.

3 Sennett V. Johnson, 9 Barr, 335.

4 Leake, 2d ed. 1008, citing Maw V. Ulyatt, 31 L. J. C. 33.

5 Lee V. Lester, 7 C. B. 1008. 6 Eyton V. Littledale, 4 Ex. 159. 7 New Quebrada Co. V. Carr, L. R. 4 C. P. 651.

8 Lowell V. Lane, 33 Barb. 292.