probable that they had not heard of it, as every act of the colonial legislature was liable to a repeal by the king and council, and could not but be reported to them, and in that case could not well but come to the knowledge of at least one branch of the legislature, the house of Lords. But whether owing to the embarrassment of a court of chancery upon whose wonted jurisdiction they did not wish to trench; or to the advantage of having it, as not rendering it necessary, in their opinion, to go so far in some particulars, the whole extent was not given by the words of those acts, which by the provisions of our act of assembly, is established. In order the better to compare the two English statutes with our act of assembly, we shall extract it here.

It is entitled, "An act for defalcation." The etymon of this term is from Falx a latin word for a pruning knife. Hence falco to amputate, or prune. Defalco, the compound, to prune from: So that vi termini, it expresses the pruning a demand by shewing that it is less than it purports to be, by reason that it ought to be made less by something shewn against it. Let us now see the act.

"If two or more, dealing together be indebted to each other on bonds, bills, bargains, accounts or the like, and commence an action in any quarter of this province, if the defendant cannot gainsay the deed, bargain or assumption, upon which he issued, it shall be lawful for such defendant to plead payment of all or part of the debt, or sum demanded, and give any bond, bill, receipt, account, or bargain, in evidence, and if it shall appear that the defendant hath fully satisfied the debt or sum demanded, the jury shall find for the defendant, and judgment shall be entered, that the plaintiff shall take nothing by his writ, and to pay the costs. And if it should appear that any part of the sum demanded be paid, then so much as is found to be paid, shall be defalked,! and the plaintiff shall have judgment for the residue only, with costs of suit. But if it appear to the jury, that the plaintiff is overpaid, then they shall give in their verdict for the defendant and withal certify to the court how much they find the plaintiff to be indebted, or in arrear to the de

fendant more than will answer the debt or sum demanded; and the sum, or sums so certified, shall be recorded with the verdict, and shall be deemed as a debt of record, and if the plaintiff refuses to pay the same, the defendant for recovery thereof, shall have a scire facias against the plaintiff in the said action; and have execution for the same with the costs of that action." There is nothing said about executor or administrator in our act as being unnecessary; because a provision which is made for the original parties, must extend to the representatives.

"Mutual debts" are the words in the English acts. This answers to the word, debitum, or what is due, in the Roman law, and can have no reference to the technical distinction of a debt by specialty; or of a certain sum by contract, or in account settled. It must have a more extensive meaning, and be clear of what is merely technical in the denomination of demands. But our act introduces a specification of bonds, bills, bargains, promises, accounts, or the like. The word bargain has a sweeping effect, and cannot but let in unliquidated damages. So that a defendant in answer to a demand on one bargain may be let in to give evidence of a claim on his part, on another. But still it must be a bargain in the course of dealing together. It is no objection and ought to be none, that the damages on such bargain, are not liquidated, because on notice given, they can be liquidated by the same jury that hears the plaintiff's demand. And in case of a penalty we make no distinction, because we can enquire in the case of a bond what was the real debt; and we can set off what is really due. Even in England the liberal mind of Lord Mansfield, saw that this could be done. "He said he expected that it would have been put upon the foot of setting off the sum that the defendant imagined to be really due for the damages he sustained. But he now perceiv ed that it was insisted the whole penalty might be set off., He said it is clearly most unjust and contrary to the intention of the acts of parliament, that the whole penalty should be admitted to be pleaded by way of set off when, perhaps, a very small sum was really due for such damages as the de

fendant had actually sustained." The judges were fettered by the principle that the penalty could not but be considered as the real debt, in a court of larv.

For the construction of our act of assembly as to what demands may be set off, see Smith's laws, 51.

As to the pleading, or giving in evidence with notice, there is a provision subsequent to this act by that of the 14 Feb. 1729, 30; of which see in the same note to Smith's edition of the laws of Pennsylvania.

The scire facias given by our act of assembly, which is in the nature of a summons to shew cause why execution shall not go for the sum certified to be found for the defen dant. This provision is a novelty, and not adopted by the English acts, though for what reason, I am not able to comprehend. For unquestionably it must be considered an improvement.

Where in case of a set off a balance is found for the defendant, but for this provision he must bring his action and declare. The scire facias, here, is a declaration at once, and will set forth the ground on which the demand is made without circuity. It is in the nature of a new action as every scire facias is, but springing out of the former suit, the connection and relation is immediately seen without pleading, or averment; and delay is avoided, and expence to the parties.

Though a set off is a matter of right to a defendant, yet he is not bound to make it. He may prefer as it may be advisable, to do in many cases, the keeping demands separate, as things taken singly may be better understood.

I have been the more particular in an analysis of this act of assembly, that the student may distinguish the reason of the construction of the law of set off by the English judges, and by the decisions of our courts, and also that the respect due to the good sense of our early legislators may appear.

"Also, all actions of trespass, (quare clausum fregit, or otherwise) detinue, trover, replevin, account, and case, (except upon "accounts between merchants) debt on simple contract, or for ar"rears of rent, are limited by the statute last mentioned (21 Jac. "I c. 16.) to six years after the cause of action commenced; "&c." III Bl. Com. 307.

THIS statute is a provision of wisdom and humanity, but it must be restrained to the reason of it. It is founded on the policy of protecting honest but improvident individuals who are not careful in taking vouchers of their payments, and there is a presumption arising in human transactions that a debt not demanded for a length of time, is paid, because creditors do not usually, except in particular cases, a continuance, &c. suffer debts to lie over, without being demanded, a great length of time. The length of time which the statute has fixed upon, as a general rule, when the presumption shall be considered as having arisen is six years; but whatever will meet that presumption, and remove it, shall take the case out of the statute. It is not therefore a promise to pay the debt, but an acknowledgment of it, that meets the presumption, and takes a case out of the reason of the law. As, in contracting the debt, there is seldom, or never, an express promise to pay, or totidem verbis, as I will pay, the law is said to raise it, or to imply a promise, so it is said that by an acknowledgment of the debt, the former promise is revived or continued, which is sometimes the phraseology or, in other words that a new promise is implied, or raised, nor need the acknowledgment be express, it may be inferred from circumstance, or expressions that imply the not having paid the debt.

What will take a case out of the statute, must be what will constitute an exception to it. In that case it is as if it had not been; with regard to any effect upon the case.

It was early felt by the judges that a case not within the reason of the statute ought not to be considered as within it. It would be “establishing iniquity by law," so to consider it. But on a simple contract debt, to which the statute alone applied, in order to avoid wager of law, dra defendant swear

ing himself clear, an action on the case must be brought, and the declaration laid with an assumpsit. In order to meet this form the defendant pleads non assumpsit, infra sex annos which prima facie brings him within the provision of the statute. The plaintiff instead of replying specially the fact of an acknowledgment, or confession of the debt within that time, joins issue on the plea of non assumpsit; probably, at an early period the narrow minds of the common law judg es, not being bold enough to encounter the statute, on the reason of it, and it not being known that the special replication of an acknowledgment would be admitted, or from mere oversight such replication not having been made. In a hard case therefore the common law courts would be disposed to adopt the astutia of considering an assumpsit, to arise from an acknowledgment of the debt, and to be a new promise. But it is but a fiction and is embarrassing to the mind of the student; for it is not consistent with the truth of the case, and is in fact, not a new promise, nor even evidence of a new promise, but of the old not having been complied with, or fulfilled. It is for this reason, that I wish we could get quit of this language reviving, or continuing a promise, and take common sense in our forms of pleading. The truth is, the plaintiff says, the defendant did contract to pay. The defendant says, I have paid. For if I had not paid, is it probable you would not have called upon me before this? I have paid, but I have lost the proof of that payment; ergo the statute of 6 years. But says the plaintiff you have acknowledged within the 6 years that you have not paid; for which reason you cannot claim the benefit of the provision. The matter conducted in pleading in such shape as this, would be intelligible. Assumpsit, non assumpsit; replication, acknowledgment; and hereupon issue joined. It would avoid the whole mummery of new promise, or reviving; or continuing the debt.

In the case of an express promise taking the case out of the statute, an issue on non-assumpsit infra sex annos be may joined, without logical blemish, or the necessity of astutia -to support a fiction.