The reasons which have been suggested, or which have occurred to me, for retaining the injunction, may be arranged under the following heads:
1. That the plaintiff did not make his defence before the referees,.and that the recovery is unjust.
3. That his demands against the defendant ought to be liquidated and admitted, by way of set-off against that recovery. ■
3. That the demands of the parties all arise out of partnership articles, and ought to be heard together, and adjusted in this court.
1. The bill was not strictly a bill of discovery, for it had a prayer for relief, and yet the necessity of a discovery would seem to have been the cause and chief object of the bill. It stated, that the plaintiff had been sued at law, and that issue had been joined, and a reference awarded, and it then added, that he “ could not make out his defence, nor obtain a report of the referees in his favour, from the account of the defendant having been fraudulently withheld, and from- the facts essential to the defence and set-off resting, in a great measure, in the knowledge of the defendant, and, therefore, not to be made out but from a full discovery of the defendant.” This is the language of a bill of discovery; and I take it for granted, that this plain and avowed purpose was the ground of the allowance of the injunction. But it appeared afterwards, that the bill was filed too late for such an object, provided the discovery was intended to have been used before the referees.
.After a verdict at law, a party comes too late with a bill of discovery. (Barbone v. Brent, 1 Vern. 176.)
After a trial at refcreeafa party afdoftbiscourt! impeach*® th! verdict °L fe- or 0¿ ground! of no^ haveavaüed hitoself, or was prevented „ .-dor ing.it, by fraud or accident, Or the act of the opposite party, without any ne'gligence or fault bn bis-yart,There is nó reason assigned why the bill was hot presented before the 2-7th of August, being only the day before the one for Which notice of the hearing at the reference had been given. It ñtiw appe'ars, that the referees met on the day appointed, and heard the Cánse iti the absence of the plaintiff; and that they had made their report, and delivered it to the defendant, some hours before notice Of the injunction whs sérvéd. The Causé (as It appears, frorii the answer to that part of the bill relative to Sé suit át law) had been at issue abófe a year, and the Supreme Court had, at three different terms, been applied to, in respéct to the appointment of referees, and in tWo instances, One of the referees hadbeén nominated by,- or on behalf of the present plaintiff. The notice of the reference had alSO been duly gifen, a's early as tlie 7th Of ¡August, and yet üó bill wáS filé cl, Or application for an injunction made, until the 27th of August. Here was extremé delay On the part Of the plaintiff, in the exhibition Of his bill, whether Se object of the bill Was discovery in- aid of the defence at la#, or Whether it wás for final rélief here. If 'a party will riot apply iri dh'e season to this court, and áppéárs to have had sufficient time, and Sufficient information to éháble him to do it, the casé stands precisely On the same ground, as if he had applied s/tor the trial Or reference at law.
It is á settled principle, that a páfty will hot be aided after a trial at law, Unless he cáñ impeach the justice Of the verdict Or report, by facts, Or on grounds of Which he could not have availed himself, or was prevented from d°ing it, by fraud or accident, Or the act of the opposite Pariy, urimixed with negligence 'or fault oh his part. This Point bas been 80 often ruled, that it cannot he héc'essáry' 0r exPe(bent to discuss it again; ahd it is One by Which I *357mean to continue to be governed. In some of the cases in this court, referred to by the defendant’s counsel, it was shown to be the rule of the English Chancery, and it appears also to have been frequently noticed and recognized in the Courts of Equity in this country. (Marshall, Ch. J. in Marine Insurance Company v. Hodgson, 7 Cranch, 336. Chancellor Desaussure, in Winthrop and others v. Lane and others, 3 Desaussure’s Rep. 324, 325. Noland v. Cromwell, 4 Munf. 155.) If the principle was to be materially relaxed, the departure from it, as I apprehend, would soon be perceived and felt to be a great public grievance, by encouraging negligence, protracting litigation, exhausting parties, and drawing within the cognizance of this court the general review of trials at law.
There is nothing before me impeaching the justice of the report of the referees. If the suit there was in a case of which a court oflaw had jurisdiction, (and which point I shall presently consider,) I do not know of any ground entitling the plaintiff to the continuance of his injunction. If there be any sufficient cause for a rehearing, or for setting aside the report, he will have an opportunity of applying to the Supreme Court, which has competent powers for the purpose, as-the report has not as yet been made to that court, and confirmed. I do not think I ought to assume the control of a matter of relief which has previously attached, and fitly belongs to that jurisdiction.
2. The matters of account stated in the bill were not proper-subjects of set-off in the action of covenant; and if-the discovery had been obtained in season, I presume it would not have aided the defence. The breaches assigned in the action at law were, that the plaintiff had refused to perform his part of the covenant, in furnishing timber and provisions, &c. and the demand at law was in the nature of redress for a wrong or injury committed, and not for a debt due. It rested entirely in uncertain and *358unliquidated damages. There cannot be a set-off even of a debt against the demand .of the plaintiff, unless that deman¿ be of such a .nature .that it could be set-off by a debt, if it existed in him. There must be mutual debts. This is the settled doctrine in the courts of law. (Colson v. Welsh, 1 Esp. N. P. Rep. 378.) Lord Mansfield, said Howlet v. Strickland, (Cowp. Rep. 56.) that not only the statute, but the reason of the thing, related to mutual debts only, and that unliquidated or uncertain damages, arising from a breach of covenants, were no debts. The same doctrine was held in Weigall v. Waters, (6 Term. Rep.) and in Gordon v. Bowne, (2 Johns. Rep. 150.)
not' seíi°ff where the decertain damafrom a breacf of covenant. BquityC°ní °f the same gene-court of as 0 set off,same rule prevails, also, in Courts of Equity, The practice may, perhaps, be more liberal in respect to mutual credits, but there is no case in which a set-off has been allowed, where the demand was for uncertain damages arising on a breach' of covenant. The courts of law and equity follow the same general doctrines on the subject of set-off. This appears from the opinion of Sir Thomas Clarke, in Whitaker v. Rush. (Amb. 407.) The cases of Ex parte Stephens, and Ex parte Hanson, (14 Ves. 24. 12 Ves. 346.) only established that under certain circumstances, there may be a set-off, in equity, when there can be none at law; and as late as the case of Addis v. Knight, (2 Merivale, 121.) it was observed by the Master of the Rolls, that in equity, as well as at law, a joint eould not be' set-off against a separate demand. Until the statute of 2 Geo. II. Courts of Equity followed the rule of law, and would not allow mutual, unconnected debts to be set off “ If they had done otherwise,” said Lord Mansfield, in Green v. Farmer, (2 Burr. 1214.) “they would have stopped the course of law, in all cases where there was a mutual demand.” It was the observation of Lord Hardwicke, (1 Atk. 237.) that he did not know that a Court of Equity had gone further than the courts of law, in cases of a set-off
There must ® “"thorize6 a set offThe doctrine of set-off was borrowed from the doctrine of compensation in the civil law. Sir Thomas Clarke shows the analogy, in many respects, on this point, between the two systems; and the general rules in the allowance of compensation or set-off by the civil law, as well as by the law of those countries in which that system is followed, are the same as in the English law. To authorzie a set-off, the debts must be between the parties^ in their own right, and must be of the same kind or quality, and be clearly ascertained or liquidated. They must be certain and determinate debts. (Dig. 16. 2. de Compensationibus, Code 4. 31. 14. and Code 5. 21. 1. Inst. vol. 2. 525. 527. Pothier, Trait, des Oblig. No. 587. to 605. Ferriere sur Inst. tom. 6. 110. 113.)
Courts of Equity, before the statute of Geo. II. (and when courts of law had no power on the subject,) have enforced a set-off, after judgment of law, where it clearly appeared to have been the intent of the parties, that the one demand should be set off against the other. Lord Macclesfield, in a strong case of this kind, (Hawkins v. Freeman, 2 Eq. Cas. Abr. 10. pl. 10. 8 Viner, 560. pl. 26.) interfered with hesitation, and put his interference on the ground of the manifest intent
I observed that the practice might be more liberal in cases of mutual credit, and, for the more accurate understanding of that observation, I would refer to the case Ex parte Deeze, (1 Atk. 228.) in which it was held, by Lord Hardwicke, that if a man had a debt due from a bankrupt, and had, at the same time, goods of the bankrupt in his hands, which could not be got from him without the assistance of law or equity, the assignees ought not to take them from him, without satisfying his whole debt. Mutual credit was not to be confined to pecuniary demands, but it reached to a case like this, of goods in the hands of the creditor. This case was cited by Ch. J. Gibbs, in Olive v. Smith, (5 Taunton, 56.) as a just decision; and he observed, that this *360Base, and the doctrine in it, had always been supported. Where one party being indebted to another,-intrusts that other with goods, it was a case of mutual credit; and the statute of 30 !Geo. II. c. 5. 'has been carried beyond money transactions, and extended ato cases of mutual ‘trust. (4 Term Rep. 211.) (a)
Equity has sive a” jurldic" co°-parZnerTe<in ?ountrs °f-If the recovery at law is to be taken, -under this -present motion, asa just recovery, then it would be unreasonable to delay the defendant until-the accounts between the-parties can'be taken and stated, and the balance struck in this court. ’One judgment -may be set tiff against another; but here is a demand on one- side raised to a débt 'certain by a legál assessment, and an uncertain-claim on the other, depending on a settlement tif accounts. 'Those accounts Were not the subject of set-off; and (there is no case to warrant me to stay execution on the-one-demand,-untiHhe Other is settled, and in a condition-lo be set-off. -It may be -a long-time, béfore the accounts betweentheseparties canhe stated, and the balance struck, and until that be-done, it cannot be known even on which sid e the balance will fall.
The only colourable ground against the motion, -that the demands on each side arise out of partnership articles ; and that the cognizance tif the Whole case, (belongs properly, if not-exclusively,'-to this court.
But, 1 do not find, that-even matters tif account between co-partners, bélongexélusivély to (this -court, though .in practice, they may -be confined here. Courts of-law and equity have concurrent jurisdiction in matters of account; it is-conceded,‘thát an action: of-account-at law may *361be brought by one partner against another. (Co. Litt. 171. a. Montague on Partnerships, vol. 1. 45.) In that action, the auditors have all the requisite powers, for they can compel the parties to account, and to be examined under oath; and I have not been able to discern any good reason why that action has so totally fallen into disuse, (a) The practice, also, under the statute, of appointing referees in matters of account, is a new power given to our courts law, and it would seem to render the cognizance of causes much more suitable for a court of law here, than in England. This court has no better mode of settling accounts than by referees, and it is, in many cases, under the necessity of appointing a merchant or other skilful accountant, to assist the Master in taking and stating the accounts. Lord Hardwicke once said, (2 Atk. 144.) that the House of Lords frequently made such references in matters, of account, and he thought it the most proper method in a case then before him. In Chapman v. Koops, (3 Bos. & Pull. 289.) the undivided interest, of one partner was taken On execution, and the C. B. refused to make an order of reference to their prothonotary to take the partnership account, and the judges considered that such a step would be assuming equity jurisdiction In that case, and in such a collateral way, the measure proposed would have been changing the character' of the court; and, doubtless, it had not the jurisdiction in the mode asked for. But if such a point had directly arisen in the action of account, no such objection could have been *362made, and auditors would have been appointed; I believe, that the action of assumpsit has never been carried further, between partners,- than to the case of an account stated, and a promise by one of them to pay to the other the balance struck. (Foster v. Allanson, 2 Term Rep. 479. Moravia v. Levy, 2 Term Rep. 483. note.) Whether the action of assumpsit may not be further extended, (for it is a veiY liberal and remedial action,) so as to reach, and carry into effect the general powers of a court of-law, of settling account, by referees, it is not for me to determine. It is sufficient, for the present purpose, that the defendant had a suitable action at law provided for his case, and that the action of covenant mentioned in the pleadings was xvell brought; and the cases I have referred to, in the Term Reports, admit, that if the parties enter into articles of copartnership xvithin a covenant to account atstated times, an action at laxv will lie upon the covenant. We meet • . also with the same doctrine, applied even to an action of assumpsit, in Venning v. Leckie, (13 East, 7.) That xvas an action of assumpsit on g-promise in -writing to take Part °f certain goods, bought by the plaintiff on joint account, and for xvhich they xvere to be equally concerned in the profit-and loss. It was objected; that this xvas a partnership, and that-no action lay by one partner against the other; but the court said, that- there were many deed's of copartnership in xvhich the partners covenanted each to advance a certain sum, and that an action at laxv xvould lie to enforce the covenant, though there were accounts between them afterxvards, xvhich would require unraxrelling in equity.
An action of brought at^law 1^,;°°® another* of^^tiTbc a|0' faction is ®pt resorted to, instead of a bill in equity., An- action of covenant lies at law by one partner aginst anotherf“where ^ii’crct/a‘covcí nant to Andan assumpcti will also he, on a promise in partner,’totakeof Íought,inwhich cqualiyercon-íe fit and*loss. *ir°"These cases approach, in principle, to the one under-discussion ; and though the plaintiff may be entitled to-go on, and have an account taken in this court, yet I see nothing to justity me in interfering in the mean time with the defendant’s action at law. The motion to dissolve the injunction must be granted.
Motion granted.
Tbese are hatórup teases; arising under the statute.ofbankruptcy, which speaks of mutual -credits. The statute, of. 2 Geo. II, ch. 22. s. 13., whiphfir/stellowed set-offs at law, speaks only of mutual debts; and the language of our.act, previous to the late revision; was, “ that if two or more persons dealing together be indebted -to each other;”!&c.i (L.fN. W,- .1 K. and R. :347.) iln the.rovised act (sess. 3(1. ch. 56, s. 1-, 1N. R.L, 515) the words.are, “ that iftwo. or tpore persons dealing together be indebted to each Other, or have demands arising mtreontract or credit against each other."
Vide Godfrey v. Saunders, (3 Wils. 73—117.) in which Ch. 3. Wilmot said, he was glad to see this action of account revived in that court. Some of the objections to this old common-law remedy were obviated by the stat. 4 Am. ch.16. s. 27. which allowed it between joint tenants or tenants in common, and against their executors and administrators! and the auditors are empowered to administer an oath, and examine the parties on oath, touching the matters in question. (1 Selw. N. P. 1. 1 Bac. Air. Accompt.) The same provisions are to be found in our statute. (Sess. 11. ch. 4. 1 N. R. L. 90.)