
    RUSSELL v. SMITH, for the use of Prince.
    (S. C., Thomp. Cas., 34-36.)
    Knoxville,
    September Term, 1848.
    1. PRACTICE. Want of profert excused.
    Where the declaration shows that the plaintiff is not entitled to the possession of the instrument sued on, it is a sufficient excuse for failure to make profert of it. [Profert is excused, if tbe instrument is lost, or in the hands of the defendant. Note 5 under section. 4608, and notes 10-15 under section 5696, of Code. As to the law in regard to profert and lost instruments, papers, and records generally, see Code, sec. 4608, and notes, and secs. 5694-5704, and notes.]
    2. PLEADING. Plea of payment.
    A technical plea of payment to a declaration in an action of covenant is irrelevant, and therefore bad, and should be •stricken out. [Payment must be pleaded to obtain the benefit of the presumption of payment from the lapse of time. Stanley v. McKinzer, 7 Lea, 454, 456, 457; Carter v. Wolfe, 1 Heis., 694, 699, 700.]
    3. SAME. Plea of set-off.
    A plea of set-off is bad, where it undertakes to set off debts not mutual, or unliquidated damages for repairs done the rented premises in an action for the rent. [As to the plea of set-off, and what may be pleaded as a set-off, and what may not be so pleaded, see Code, secs. 4639-4646, and notes. Note 40 under sec. 4040 seems to show that this decision is not sound on the point that compensation for the repairs cannot be set off.]
    4. PBACTICE. Suit for use of one in name of another.
    The person in interest may sue in the name of another person without his express authority. [As to suits in the name of one person for the use of another, see Shannon’s Code, secs. 4492-4494, and notes.]
    5. SAME. Same. IIow questioned.
    The right to' use the name of a nominal plaintiff may be questioned by a rule on the person for whose use the suit is brought to show his authority for so doing. [It cannot be called in question by plea, or by evidence on the hearing, but only by a preliminary rule promptly made. Kailroad v. Henderson, 1 Lea, 7, citing- authorities.]
    This was an action of covenant brought in tbe- name of Smith, for the use of Prince, against Russell.
    The declaration stated that the said covenant was in the possession of a third person, with whom it had been agreed by the parties that it should be left, and who refused to deliver it into- the possession of the plaintiff.
    Because profert to the covenant sued on was not made, the declaration was demurred to, which demurrer was overruled.
    The . defendant filed five pleas, among which was the plea of payment, and twoi others, which on motion the court ordered to be struck out as frivolous-.
    
      To another plea, that of set-off, alleging that the plaintiff ■was indebted to him and his co-obligor in the- covenant in a large snm, and among other special items set out, stating a claim for compensation for repairs made to the rented premises while he resided on the same, the plaintiff demurred, which demurrer was sustained.
    At the return term of the writ, the defendant obtained a rule on the person, for whose use the suit was brought, to show authority from Smith for using his name in prosecuting the suit; whereupon, proof was shown that the covenant was entered into' by the said Russell with Smith, in consideration of the use of certain property belonging to certain wards for whom Smith was guardian, Smith having gone to Texas. This rule was discharged. From the judgment of the circuit court Russell appealed.
    
      ~W. Swan, for plaintiff in error.
    J. 1VL Welcker, for defendant in error.
   Upon the above state of facts,

Green, J.,

delivered the opinion of the court; deciding,

1. That the plaintiff, not being entitled to the possession of the covenant, the statement in the declaration is sufficient excuse for the failure to make profert of the instrument sued on.

2. The technical plea of payment, being irrelevant to an action of covenant, was properly stricken out. It is not enough that the facts of the plea meet the allegations of the declarations; it should also be technically relevant to the action.

3. The demurrer to the plea of set-off was well taken, because mutual debts can alone be pleaded as set-off; and because part of the matter pleaded is a claim for unliquidated damages for repairs done the premises, which claim is not the subject of set-off.

4. The guardian of those for whose use the suit was brought having left the state, his name was rightly used, though it was without his express authority, in order to effect a recovery to which they were equitably entitled. There was no error in discharging the rule*

The judgment of the circuit court was, therefore, affirmed.  