SET OF EXCHANGE. The different parts of a bill of exchange, taken together. Each part is a perfect instrument by itself; but the parts are numbered successively, and upon payment of any one the others become useless. See Chitty, Bills, 1836 ed. 175; Parsons, Notes & B.
In Practice. A demand which a defendant makes against the plain tiff in the suit for the purpose of liquidating the whole or apart of b is claim. See 7 Fla. 329.
2. A set-off was unknown to the common law, according to which mutual deqs were dis tinct, and inextinguishable except by actual payment or release. I Rawle, Penn. 293: Babington, Set-Off, I.
The statute 2 Geo. II. c. 22. which has been generally adopted in the United States, with some modifications. in cases of mutual debts, however, allowed the defendant to set his debt against the other, either by pleading it in bar, or giving it in evidence, when proper notice had been given of such inten tion, under the general issue. The statute, being made for the benefit nf the defendant, is not compulsory, 8 Watts, Penn. 39; the de fendant may waive his right, and bring a cross-action against the plaintiff'. 2 Campb. 594 ; 5 Taunt. 148; 9 Watts, Penn. 179.
3. It seems, however, that in some cases of intestate estates and of insolvent estates, perhaps owing to the peculiar wording of the law, the statute has been held to operate on the rights of the parties before action brought or an act done by either of them. 2 Rawle, Penn. 293 ; 3 Binn. Penn. 135 ; Bacon, Abr. Bankrupt (K). See 7 Gray, Mass. 191, 425.
Set-off takes place only in actions on con tracts for the payment of money: as, as sumpsit, debt, and covenant. A set-off is not
allowed in actions arising ex delicto ; as, upon the case, trespass, replevin, or detinue. Bul ler, Nisi P. 181; 4 E. D. Smith, N. Y. 162.
The matters which may be set off may be mutual liquidated debts or damages; but un liquidated damages cannot be set 'off. 3 Bosvv. N. Y. 560; 34 Penn. St. 239 ; 34 Ala. N. s. 659: 20 Tex. 31; 2 Head, Tenn. 467; 2 Mete. Ky. 143 ; 3 Iowa, 163; 8 id. 325; 1 Blackf. Ind. 394; 8 Conn. 325; 6 Halst. N. J. 397 ; 5 Wash. C. C. 232. The statutes refer only to mutual unconnected debts; for at common law, when the nature of the em ployment, transaction, or dealings necessarily eonstitutes an account consisting of receipts and payments, debts and credits, the balance only is considered to be the debt, and there fore in a.n action it is not necessary in such cases either to plead or give notice of set-off.
4 Burr. 2221.
4. In general, when the government is plaintiff, no set-off will be allowed. 9 Pet. 319 ; 4 Dall. Penn. 303. See 9 Cranch, 313; 1 Paine, C. C. 156. But when an act of con gress authorizes such set-off, it may be made. 9 Cranch, 213.
Judgments in the same rights may be set off against each other. at the discretion of the court. 3 13ibb, Ky. 233; 3 Watts, Penn. 78; 3 llalst. N. J. 172 ; 29 Barb. N. Y. 295; 18 Tex. 541 ; 30 Ala. N. s. 470; 4 Ohio, 90; 7 Mass. 140, 144 ; 8 Cow. N. Y. 126. See Montague, SetrOff; Babington, Set-Off; 3 Starkie. Ev.; 3 Chitty Blackst. Comm. 304, ; 1 Chitty, Plead. Index ; 1 Sellon, Pract. 32,1 ; Bouvier, Inst. Index.