¶1refused taking any part in the decision, as he originally had brought the suit.
¶2Had this matter been pleaded, or proper notice given of the intended set-off, I should think it might be well given in evidence. The debt claimed and counter demand, respect the representative character of the parties. Our defalcation act of 1715 (1 Dall. Laws 65) has often been said to be more comprehensive than the British statutes of 2 Geo. 2. c. 22, and 8 Geo. 2. c. 24, though it never could' have intended, that all kinds of damages under covenants should be set off, and it has been ruled accordingly. '
¶3In England, when a debt intended to be set-off, accrues by reason of a penalty in a specialty, it shall be pleaded in bar, and the sum justly and truly due must be shown in such plea by the (6 Vol. Ruff. Stat. 198) 5th sec. of 8 Geo. 2. p. 24. Unliquidated, uncertain damages there cannot'be pleaded by way of set off, according to the case cited; (Cowp. 57) but sums in the nature of stipulated damages, for breach of any agreement, may be so pleaded. (2 Term Rep. 32.)
¶4In the present instance, the demand insisted on not having been pleaded, or notice given of the set-off, I am bound by the positive words of the (1 Dall. Laws 263) act of 14th February 1729-30, § 10, and cannot admit the set-off in evidence. Without notice, it would operate as a surprise on the plaintiff, who could not come prepared to contest the demand.
¶5But the substantial justice of this case I think, cannot easily be reached in a trial by jury, where so many complicated demands, both in specie and continental money, are made by both parties; and I would therefore recommend a submission of all matters in variance to , a proper reference.
¶6The counsel adopted the court’s recommendation, and referees were . appointed accordingly, and the jury discharged.