
    Joseph Witter, Jun., Plaintiff in Error, versus Joseph Witter.
    An account for board, washing, mending, and finding a room, may be filed by way of set-off, under the statutes authorizing the filing of accounts by defendants in ctions on simple contract
    Error to the Circuit Court of Common Pleas, holden in this county, to reverse a judgment rendered in April last, in an action of the case, wherein the defendant in error was original plaintiff, and the' plaintiff in error original defendant.
    The original action was upon a promissory note, and for money had and received. The defendant, seven days before the return of the original writ, filed in the clerk’s office, by way of set-off to the plaintiff’s demands, his account, the three first articles of charge therein being for the plaintiff’s board, finding him a room, washing and mending, and the remainder of the account being for articles of merchandise sold and delivered by the defendant to the plaintiff.
    The parties went to trial in the court below upon the general issue, and the defendant moved to give evidence in * support of his account so filed ; to which the plaintiff [ * 224 ] objected ; and the Court thereupon determined that the three first articles in the said account were not entitled by law to be filed as a set-off, and could not be given in evidence on the said trial, and the same were excluded.
    The defendant filed his bill of exceptions at common law, which was allowed, and from which the foregoing statement is taken. And he now assigns the said decision and determination for error.
    
      Gold, for the plaintiff in error.
    The old act, authorizing the filing accounts by way of set-off, (6 G. 2, c. 2,) limited this privilege to the account-book of the defendant. By statute of 1784, c. 28, §12, the privilege was extended to any account the defendant might have; and, by statute of 1793, c. 75, § 4, the defendant may give in evidence upon the general issue his demands for goods delivered, moneys paid, or services done, having duly filed his account. The legislature have thus discovered a desire to extend this useful provision for diminishing costs and lessening the number of suits. Courts of law will further these laudable views of the legislature.
    In the case at bar, the provisions furnished to a boarder may well be considered as goods delivered, and the cooking, washing, &c., as services done, and all included under the word board.
    
      Howe, for the defendant in error.
    The statutes of set-off are in derogation of the common law, and ought therefore to receive a strict construction. The cases riot enumerated are to be considered as excluded. Such has been the construction given in the English courts to similar provisions in their statutes. 
    
    The statutes of 1784 and 1793 speak of the defendant’s recovering on his account filed, in the same manner as if an action had been brought for the articles charged in the account. This must be referred to the demands allowed to be filed, and it will be seen that board, lodging, &c., could not be declared for m [ * 225 ] an action, either as “ goods * delivered, moneys paid, or services done,” which are the only kinds of demands allowed to be filed by way of set-off.  The statute of 1793 provides for the filing of accounts only in actions on simple contract in writing. But the declaration in the original action here has a count upon an implied promise for money had and received.
    
      
      
        ' (1) Tidd's Practice, 601.
    
    
      
      
        Slot. 1793, c. 75, § 4.
    
   Per Curiam.

We think the Circuit Court of Common Pleas were too scrupulous in refusing to admit the evidence offered by the defendant in the case before us, in support of his account filed. Board and lodging, washing, &c., are all included within the meaning of goods delivered and services performed. If there had been a specific charge for the rent of a room, that might well have been excluded. The judgment is reversed, and a new trial is to be had at the bar of this Court,

additional note.

[See Howell vs. Webb, 2 Pike, 360. — F. H.] 
      
      
         [In Richards vs. Blood, (17 Mass. Rep. 66,) the Court went so far as to con sider money received by the plaintiff, to defendant’s use, as money paid by defendant to him. — Ed.]
     