SCIRE FACIAS. 1. Scire facias is the proper remedy on forfeited recognizance, but the recognizance must be in conformity with the statute. Lyon et al. v. State, A. R. 34. 2. Lands descended, cannot by sci fa. on judgment against administrator, be made liable to execution in the hands of heirs. Bells, Trigg & Watkins v. Heirs of L. Robinson, 1 S. 193. 3. Scire facias to the representatives of an estate, to make them parties to a suit, must be directed to them as such. Heirs of Caller v. Malone, et al. 1 S. & P. 305. 4. In scire facias against bail, it is not necessary to insert an entire copy of the bail bond. Toulmin v. Bennett & Laidlaw, 3 S. & P. 220. 5. Suits commenced by scire facias, are like other actions, and a reasonable certainty in describing the record which is the foundation of the action, is all that is required. The plaintiff may elect in such proceeding to make out his case in the scire facias, setting forth all that is essential to a record, and dispense with a declaration; or to use the scire facius as a writ, and declare as in other cases. Ibid. 6. The statute of jeofails, 1824, cures an omission to set forth the record and judgment upon which the scire fucias is founded, prout patet per recor dum. Ibid. 7. It is a good plea to sci fa. against bail bond, that the plaintiff has not given security for cost as required by statute 1827. Ibid. S. The defects of an insufficient scire facias in a proceeding against bail, when there was shewn a judgment upon a plea withdrawn, are not waived, such an action not being considered as tantamount to a confession of judgment, which releases all errors. Clements v. Johnson, 3 S. & P. 269. 9. Under the attachment laws of 1807 and 1812, scire facias is the proper remedy on the bond for the replevy of property attached. Sartin & Rogers v. Weir & Co. 3 S. & P. 421. 10. In a proceeding by scire facias on replevy bond, a discontinuance may be entered against such obligors as are not served, and judgment had against the rest. Ibid. 11. A plea to such a suit, that the property attached and levied, did not belong to defendant in attachment, but to a stranger who served it, is bad on demurrer. Ibid. 12. Amendments to proceedings on sci fa issued on a replevy bond, may be legally made by reference to the bond and to the judgment of the record. Ibid. 13. And when non est factum is filed in reference to a defect in the description of the bond sued on, which defect is afterwards amended, it is no error to disregard the plea, and enter judgment for want of a plea. Ibid. 14. Sci fa. against defaulting witness, when no return is indorsed thereon, judgment will be reversed. Cato v. Harrison 3 P. 219. 15. By third section statute 1833, personal service of a writ of sci fa, issued on recognizance against bail in a criminal case, is required to enable the State to recover against defendant, though it appears that previous to the statute, a return of "not found" on an original, aud alias sci fa. was equivalent to personal service of the writ. Hayter v. State, 7 P. 156. 16. A judgment on a sci. fa. against the obligor in an injunction bond, will not be reversed for error, though the bond by statute when forfeited, had of itself the force and effect of a judgment. Boggs v. Bandy, 2 S. 459. 17. It seems that the proper mode to bring up a record, when the party below has died after judgment, is hy application to this court for a sci fa. or certiorari, on proof the death. Seawall v. Butes' ud'ms. 2 S. 462. 18. A sci.fa. against executors or administrators to show cause why execution de bonis propriis should not issue after judgment by default against the estate, is not allowable on the bare return of nullu bona to an execution de bonis testatoris. Banks v. Hooks & Davis, 2 P. 271. 19. It is not essential in a proceeding by sci fa. against bail, to set out the affidavit or order for bail. Glidden v. Leonard, 4 P. 194, 20. In a proceeding by sci. fa. against bail, it is not necessary to show the issuance of a ca sa to a county, to which defendant may have moved after Kennedy v. Spencer, 4 P. 428. arrest. 21. Under the statute of this State it is only essential in order to sustain sci fa against bail, that a ca sa should be returned non est inventus, when sued out to the county in which the defendant is arrested. Ibid. 22. Sci. fa. against bail should disclose the cause of action with the certainty requisite in a declaration. Ibid. 23. So a sci. fa. not setting out the bail bond with sufficient certainty, held defective. Ibid. 24. The remedy by sci. fa. upon a recognizance, is given by statute, and only maintainable upon the supposition that the liability which it seeks to redress, is authorized by a legislative act. That hypothesis failing, the defendant cannot be charged. Whitted v. the Gov. &c. 6 P. 335. 25. Where a recognizance recites that the recognizor freely, voluntarily, and of his own will and pleasure, took upon himself the obligation it imposes, the recognizor is estopped from after wards setting up in an action by sci fa. upon the recognizance estreated, that it was extorted from him. Ibid. 26. Nothing can be pleaded by bail, which could have been used by his principal in defence of the action against him. Toulmin v. Bennett & Laidlaw, 3 S. & P. 229. 27. It is a good plea to scire facias against bail, that the plaintiff has not given security for costs. Ibid. See Bail-Execution-Recognizunce. SET-OFF. 1. Under general issue, without notice, a set-off cannot be given in evidence. Judson v. Eslava, A. R. 2. 2. To enable defendant to set-off a note of plaintiff's, which has been assigned to him, he must prove the assignment to have been before action brought. Gross v. Vanwick, A. R. 7. 3. Action on note payable to administrator, defendant cannot set-off debt due by intestate to him. Adm'r. Mays v. Holland & Bruce, A. R. 176. 4. Action by the administrator of obligee on the joint bond of two, under their joint plea, they may set-off the debt due by the testator to one of them. Pitcher & Remson v. Patrick's admr's. A. R. 321. 5. On trial before justice, defendant may set-off a sum not exceeding $50. Bowman v. Gary, A. R. 327. 6. In an action against the maker by the bearer of a note payable to G. P. or bearer; a note of W. H. and G. P. payable to defendant or bearer, may be given in evidence as a set-off, and without proof of the signature of W. H., or that defendant was in possession of the note when the action was brought. Clark v. McElroy, 1 S. 147. Į Gee, adm'r. v. Nicholson, 2 S. 512. ( 7. A deposit in bank by a principal, is subject only to his check, and cannot be pleaded by his security in bank, as a payment or set-off. Lyon v. State Bank, 1 S. 442. 8. The note of a deceased person, payable to a third person, but not indorsed to defendant, is not a good set-off in an action by an executor on an order in his favor. Gayle v. Randle, 1 S. 529. 9. When a defendant pleads as a set-off a note made by the plaintiff to another person and transferred to him, the plaintiff will not be permitted to prove such set-off void, as being given for a gambling consideration, without replying such defence specially. Baldwin v. Brogden, 2 S. 9. 10. A set-off cannot be plead to a cotton receipt in the hands of an innocent indorsee, without notice of a demand existing against payee. Winston v. Moseley, 2 S. 137. 11. A demand accruing by reason of a failure of the consideration of a part of a note previously transferred by A to B, and ascertained by a decree in equity-is a good set-off. Gee, adm'r. v. Nicholson, 2 S. 512. 12. To a suit brought by an administrator, the defendant may plead as a set-off a demand due by the intestate at the time of his death, although the estate has been declared insolvent. Perrine v. Warren, 3 S, 151. 13. The same strictness either in form and substance, essential to a special plea, is not necessary to a notice of set-off; it is sufficient if it describe the demand intended to be set-off, with reasonable certainty. Ibid. 14. A justice of the peace cannot retain money received in his official capacity as an off-set to a debt due him in his individual capacity. Powell for Johnson v. Marsh, 1 S. & P. 17. 15. An off-set to be available, and to authorize a balance in favor of defendant, must appear to be of matters mutually subsisting between the parties. Scott v. Rives, 1 S. & P. 19. 16. Courts of law, in the exercise of legitimate and incidental powers, have the right to authorize a set-off of one judgment against another existing between the same parties, and such order is not subject to revision. Ibid. Post p. 24. 17. When an indorsed note is relied on as an off-set, such indorsement must be proved. Cass v. Northrop, 1 S. & P. 89. 18. The statute 1819, exempting plaintiffs in suits on assigned paper from proof of the assignment, unless defendant makes affidavit that it is forged, is not applicable to cases where an indorsed paper is produced as a set-off. Ibid. 19. When defendant produces an assigned note of plaintiff as set-off against plaintiff's action, the latter may show a total or partial failure of consideration, for which the note was given, either by replication to a plea of set-off, or in answer to the general issue and notice of set-off. Hudson v. Tindall, ex'rs. 1 S. & P. 237. 20. If amount claimed by way of set-off be more than $20. he cannot testify in regard to it, unless he relinquishes the excess. Lock v. Miller, 3 S. & P. 13. 21. An off-set is not available, if it appear to be the subject of a suit pending when offered. Ibid. 22. The maker of a promissory note on bond, when sued by an assignee, may set off any proper demand which he may have held at any time against payee, previous to the notice of assignment by the latter. Stocking v. Toulmin, 3 S. & P. 35. 23. But the right of set-off under the statute does not exist in demands subsisting against intermediate assignees, through whom such note or bond may have passed by blank indorsement or otherwise. Ibid. 24. In an action by an administrator on a note executed to him as such, the defendant may set-off an order accepted by the administrator in his representative character, and drawn by a third person in his favor. Tate v. Chandler, 4 S. & P. 417. 25. Board and lodging to the plaintiff's ward, form no ground of off-set against piaintiff, when he sues on a note payable to him as an administrator. 1 bid. 26. Chancery follows the same general rules as to the nature of set-off as courts of law. Colgin v. Cummins, 1 P. 148. 27. When a note was given upon a defective consideration, and transferred on a valuable consideration, a right of action to the extent of failure, immediately accrues, and is available as a set-off immediately, without waiting until the defect is established by record evidence. Gee v. Williamson, use of Nicholson, 1 P. 313. 28. A defendant is not bound to plead what is strictly a set-off, but if he chose may resort to his own action. Garrow v. Carpenter & Hannick, 1 P. 359. 29. In an action by partners on a partnership demand, a judgment obtained against one of the firm is not available as set-off. Peirce and Baldwin v. Hickenburg, 2 P. 196. Į v. Pass, 1 P. 232. Ì Ibid. 30. When a note was given, payable and negotiable at either of the banks in Mobile, and at the same time an agreement by the maker in writing, that he would "give a satisfactory indorser upon the note, living in Mobile, if payee could not negotiate said note without:"-this is a waiver of all off-sets against either the bank or any other innocent holder of the same. Emanuel v. Atwood, 6 P. 384. 31. A plea of set-off should disclose such a state of facts as would entitle the party pleading it to his action if he were plaintiff in the suit. Crawford v. Ex'r. of Simonton, 7 P. 110. 32. In general, courts of equity, in relation to matters of set-off, follow the rules adopted by courts of law, but there are cases in which a set-off will be available in equity, which would not be so at law. Thus, in a matter where mutual credit is given between the parties for a demand not allowable as a set-off at law, equity will allow it. French v. Garner, 7 P. 549. 33, A note in the hands of defendant, given by plaintiff, but payable to a third person, although belonging to defendant in right of his wife, is not available as an off-set, unless there is an express promise on part of plaintiff to pay the same to defendant. Ibid. 54. When a special agreement is alledged to exist to allow a note held by defendant, but which would not be a good off-set at law, and it is doubtful whether the agreement could be enforced except in a court of equity, there would seem to be good ground for equitable interference. Ibid. 35. Certificates of stock issued by private associations, under articles rendering them assignable, and prescribing no lien upon them for debts due the company, are not subject in the hands of a bona fide assignee to an off-set against the original stock holders. Spence Adm. v. Whitaker, 3 P. 297. 36. It is competent for a party when sued before a justice of the peace a sum over $20, to prove by his own oath a set-off to the plaintiff's demand. provided the set-off does not exceed $20. for Thompsan v. Jones, 2 S. & P. 46. 37. But a defendant will not be permitted, after judgment has been rendered against him by a magistrate for a sum exceeding $20, to pay a part, so as to reduce the claim below that amount, and take the case into another court by appeal, and claim the benefit of his own oath, so as to swear off the balance. Ibid. 38. An action will not lie to recover back money paid in part liquidation of a note of hand, but not credited thereon, where suit has been brought upon the note, and judgment recovered-no effort being made upon the trial to obtain an off-set of the amount paid. DeSylva v. Henry, 3 P. 132. 39. A defendant holding an account against a plaintiff, may use it or not, on the trial of a suit against him, or make it the ground of another action, as he pleases. Ibid. 40. The 10th section of the act of 1802, "for the limitations of actions, &c.," does not embrace within its letter, on the equity of its construction a case where a plaintiff seeks to recover the amount of a promissory note, which as defendant to a previous chancery cause, between the same parties, he had relied on as an off-set, but which had been disallowed, and a decree rendered against him. Cummins v. Colgin, 3 P. 393. 41. In such case, it was held, that notwithstanding the chancery decree professed not to prejudice the right of action on the note, yet it could not restrain the right of the party to the plea of the statute of limitations. Ibid. |