1841. AMOR V. CUTHBERT. joined issue on the plea of non as plaintiff the said sum of 581, 15s. for his damages, which he had sustained, as well by reason of the not performing of certain promises before then made by the plaintiff to the defendant, as for his costs and charges by him ly, a set-off of about his suit in that behalf expended; whereof the 581. 158. upon plaintiff was convicted; as by the record, &c.; which a judgment, and 2001. for judgment still remained in full force and effect not regoods sold and versed, annulled, discharged, satisfied, or made void, delivered, mo- and which the defendant was ready to verify by the said ney lent, &c. The plaintiff record; and in 2007. for goods sold, 2001. for money lent, 2001. for money paid, 2007. for money had and received, and 2001. for found due money stated; and that such moneys so due and owing from the plaintiff to the defendant as aforesaid exceeded the damages sustained by the plaintiff by reason of the nonperformance by the defendant of the promises in the declaration mentioned, and out of which moneys so due and owing from the plaintiff to the defendant as aforesaid, he, the defendant, was ready and willing, and thereby offered, to set off and allow to the plaintiff the full amount of his said damages, according to the form of the statute in such case made and provided. Verification. sumpsit, and traversed the other pleas, except as to so much of the plea of set-off as related to the judgment; and as to so much of the declaration as would be satisfied by the setting off of the judgment, he entered a upon an account The plaintiff joined issue on the first, second, and nolle prosequi. third pleas; and to the fourth replied (except as to so much of it as related to the judgment in that plea mentioned), that he was not at the time of the commence At the trial the plaintiff proved that the defendant was, at the commencement of the action, indebted to him in 287. 16s. 11d., and no more, for goods sold and delivered and money lent, accruing within six years. The defendant gave no evidence of any payment, or of any matter of set-off, beyond that which was admitted on the record: Held, that the defendant was entitled to the verdict on the first and second issues, and the plaintiff, to the verdict on the third and fourth issues. Held also, that the effect of a nolle prosequi entered as to any portion of a plaintiff's demand, before trial, is to withdraw that part of his claim from the consideration of the jury; but that such entry leaves the part of the claim so withdrawn, so entirely unaffected by the verdict as to entitle the plaintiff to maintain a fresh action in respect of it. ment of the suit, nor then was, indebted to the defendant, modo et formá. As to so much of the plea of set-off as related to the judgment, the plaintiff proceeded as follows: "And inasmuch as he cannot deny that he was, and is, indebted to the defendant on the said judgment in the said plea in that behalf alleged, he freely admits the same; and therefore the plaintiff will not further prosecute his suit against the defendant in respect of so many of the promises in the declaration mentioned as are satisfied by the said judgment's being so set-off by the defendant as aforesaid." At the trial before Maule J., at the sittings at Westminster after Trinity term last, the defendant was proved to be indebted to the plaintiff in 287. 16s. 11d. for goods sold and delivered, and for money lent, independently of four items in the particulars of demand, which were barred by the statute of limitations. The defendant having given no evidence in support of the third and fourth pleas, the jury said, that they found for the plaintiff on the first issue, damages 287. 16s. 11d., and also for the plaintiff on each of the other issues. The learned judge, however, directed the verdict to be entered for the defendant on all of the issues, upon the ground that the set-off, admitted by the replication to the fourth plea, exceeded the amount which the jury had found to be due to the plaintiff from the defendant, -leave being reserved to the plaintiff to move to enter the verdict for him, or to enter a special statement on the postea. Channell Serjt., in Michaelmas term last, moved for a rule to shew cause, why the verdict, entered for the defendant, should not be set aside, and a verdict entered on all the issues for the plaintiff; or why the plaintiff should not be at liberty to make a special indorsement 1841. AMOR บ. CUTHBERT. on the postea, reducing the sum of 58l. 15s., the amount admitted by the pleadings to be due to the defendant, by the sum of 287. 16s. 11d. found by the jury to be [Tindal C. J. It is not usual to due to the plaintiff. a verdict for the plaintiff'; and the verdict for the de- Bompas Serjt. now shewed cause. The defendant is clearly entitled to retain the verdict entered for him at the trial. The nolle prosequi is, to so many of the promises in the declaration as are satisfied by the judgment; and the effect of it is, to strike out such promises, to the amount of 58l. 15s. The question therefore is, whether the plaintiff proved any contract beyond that sum. [Tindal C. J. Goodee v. Goldsmith (a) closely resembles this case.] There, to a declaration in assumpsit for money had and received, the defendant pleaded as to all, except 31. 5s., non assumpsit, and also a set-off'; and, as to 3l. 5s., payment of that sum into court. The plaintiff, by his replication, admitted the set-off, and replied that he would not further prosecute his suit except as to the 31. 5s., which sum he took out of court. It was held that the defendant was entitled to his costs on the first two issues. Parke B. there says, "The replication amounts, in effect, to a nolle prosequi. If there has been a nolle prosequi to a count, or part of a count, the costs follow, by the statute 3 & 4 W. 4. c. 42. s. 23. The plaintiff has abandoned his cause of action (a) 2 M. & W. 202., 5 Dowl. P. C. 288. 1841. AMOR! v. on the general issue and the set-off. He will be entitled to costs as to that part of the cause of action in respect of which money is paid into court, but the defendant to the costs on the other issues." (a) That CUTHBERT. case shews that the defendant is entitled to the verdict upon the first, and also on the third issue with respect to the set-off. [Tindal C. J. Did you give any evidence in support of the plea of set-off?] No evidence was gone into upon that point. The question is whether, when nothing is proved by the plaintiff to be due, the defendant is not entitled to the verdict on that plea. It would have been absurd (b) for the defendant to prove any thing to be due to him by way of set-off, when the plaintiff had closed his case without shewing that any debt was due to him from the defendant. It is submitted, that the defendant has a right to retain the verdict on all the issues. He clearly would be so entitled, if the amount covered by the nolle prosequi is to be considered as struck out of the declaration. Channell Serjt. in support of his rule. It does not follow, that because the plaintiff may not be entitled to judgment, he has not a right to have the verdict on all the issues entered for him; for the question, whether the plaintiff or the defendant is entitled to judgment, is distinct from the right of each party to have particular issues found for him. The right to plead a set-off depends upon the statutes (c); and the defendant is, with regard to such set-off, in the situation of a plaintiff. (d) (a) 2 Mees. & W. 204. And see 5 Dowl. P. C. 290. (b) Except with reference to the question as to the costs of the issue. (e) 2 G. 2. c. 22., and 8 G.2. c. 24. As to recouper, or deduction by way of set-off at common law, in respect of a (d) Vide Remington v. Ste- 1841. AMOR V. CUTHBERT. Here, the plaintiff having a demand only for 281.16s. 11d., and the defendant's judgment amounting to 58l. 15s., it may be conceded that the plaintiff cannot issue execution for his debt; but he is entitled to deduct it from the defendant's judgment, and he cannot do so without having a verdict entered for him for the amount. Supposing there was no nolle prosequi (a) on the record, although the plaintiff could not have judgment, yet the verdict on that issue being entered for him, he would have the benefit of the deduction. It is apprehended that there is no difference as regards this case between debt and assumpsit. If non assumpsit had been the only plea on the record, the jury must have found that the defendant did promise to the amount of 281. 16s. 11d. There was no question as to the plea of set-off that could have been left to the jury. The only two questions which could have been left to them were, whether the plaintiff had proved any thing to be due to him, and, if so, whether it had been paid. It would have been different if the defendant had admitted the plaintiff's demand, and relied on his set-off. All that the plaintiff has done, is to admit the debt due from him on the judgment; for the nolle prosequi is mere surplusage. Cur. adv. vult. TINDAL C. J. now delivered the judgment of the court. After stating the pleadings (b), his lordship proceeded as follows: The cause came on for trial before my brother Maule, when the plaintiff proved that the defendant was, at the commencement of the action, indebted to him, for goods (a) If a nolle prosequi had not been entered, and the plaintiff had replied nul tiel record, then, upon a judgment for the defendant, quod perfecit recordum, the plaintiff would have been entitled to retain his verdict |