
    Fisher Adams and Others versus Jacob Manning and Others.
    In an action of assumpsit, it was holden that the defendants could not file, as a set-ofij a demand against the plaintiffs for certain merchandise consigned by the defendants to them for sale, which they had indiscreetly sold to an insol vent person.
    
      Assumpsit upon two bills of exchange drawn upon and accepted by the plaintiffs. The defendants had filed in set-off a demand against the plaintiffs, for the amount of certain merchandise, sent to the plaintiffs, as commission merchants in Neiv York, to sell and dispose of on account of the defendants; which was received by the plaintiffs, sold, and an account rendered, showing the balance due, as claimed by the defendants, when collected. The merchandise was sold on credit to one TJpham, who had failed, and had been discharged under the insolvent laws of New York. The question of fact, which was tried before the chief justice, was, whether the plaintiffs had acted discreetly, and with due caution, in giving the credit to TJpham, without any collateral security. The jury returned a verdict for the defendants, grounding it [ * 179 ] * upon the negligence of the plaintiffs in selling the goods to TJpham without any security. The plaintiffs objected to the account filed in set-off; and if it ought not to have been received, the verdict was to be set aside, and the defendants defaulted.
    
      Morse, for the plaintiffs.
    By “ goods delivered, in the statute , must be understood goods sold and delivered, of which the price is fixed at the time of the sale, and for which assumpsit would lie. The plaintiffs were not the purchasers of these goods, but the consignees, and if they are liable to any action upon the facts found, it is case for negligence, and not assumpsit .
    
      Aylwin, for the defendants.
    This set-off is within the words of the statute, which has not the word sold. The defendants had a right of action against the plaintiffs, as bailiffs, and receivers; and waiving the tort implied in the negligence, might maintain assumpsit. Courts of law will always favor set-offs, to prevent multiplicity of suits and circuity of action; and the case of Witter vs. Witter 
       is stronger than this.
    But if the case is not within the letter of the statute, the merits are wholly with the defendants. The merchandise was consigned to the plaintiffs, to meet these very acceptances; and it is entirely the fault of the plaintiffs, in selling it to an insolvent, person, that they were not in funds for the defendants to a greater amount than their acceptances .
    
      
      
        Stat. 1793, c. 75, § 4.
    
    
      
      
        Bull. N. P. 181.—Cowp. 479.—5 Burr. 2825.—2 Branch,, 343.—Montague on Set-off, 21.
    
    
      
       10 Mass. Rep. 225.
    
    
      
      
        Covrp. 375.—14 Mass. Rep. 282.-7 East, 450.—13 Johns. 302.—3 Camp. ‘293
    
   Curia.

The demand filed in set-off is not such as is provided for in the statute, which allows of set-offs in actions upon simple contract. The set-off must be of goods sold and delivered, moneys paid, or services done. The demand, which the defendants claim to set off, appeared by the evidence to be for damages for negligence or unfaithful management of merchandise consigned to the plaintiffs for sale. The legislature never intended that a plaintiff should be surprised by a demand like this, in answer to his action upon a promissory note or bill of exchange, *or [ * 180 ] for goods sold and delivered, but would leave the party complaining to his independent remedy. There is always power in the Court to withhold judgment until the defendant, if he will use due diligence, shall obtain his judgment for damages; after which one judgment may be set off against the other, or one execution may balance the other.

Defendants defaulted  