
    Pearley Truesdell versus Alanson Wallis.
    Under St. 1793, c. 75, which allows the defendant to file, as a set-off, an account for “ moneys paid,” he may file an account for moneys had and received by the plaintiff to his use.
    Where, upon a a account filed as a set-off, under St. 1793, c. 75, a balance appears to be due to the defendant, he may have judgment for the same, in like manner as if die account had been filed under St. 1784, c. 28.
    Assumpsit for money had and received, and money paid. At the trial the plaintiff read in evidence two promissory notes, one dated February 22d, 1819, for 220 dollars, the other dated April 1st, 1819, for 200 dollars, both on interest The defendant offered evidence to prove, that in 1818
    he conveyed to the plaintiff certain parcels of land, for which the plaintiff gave him a promissory note for 300 dollars with interest, and also a memorandum in writing, not under seal, by which he agreed to re-convey the land on the defendant’s paying him the sum of 300 dollars in one year. It was also proved, that one of the parcels of land was sold by the plaintiff, in 1820, for 426 dollars, and that about the time of the conveyance, in 1818, he received of the defendant 100 dollars. Evidence also was introduced, tending to prove that the sums of 220 and 200 dollars, for which the notes were given to the plaintiff, were paid by him on account of the land and of the sum of 100 dollars received by him as above mentioned. The defendant claimed a balance as due to him, he having filed his account in set-off, and having in addition to the foregoing evidence, proved, by way of set-off, the sale and delivery to the plaintiff of a quantity of clover seed worth from 26 to 52 dollars.
    The plaintiff then proved, that in addition to the aoove claims, he had paid 40 dollars for the defendant, and he also gave in evidence another promissory note signed by the defendant for 50 dollars.
    These were all the claims made by either party. The judge left it to the jury, upon the evidence, to settle the balance between them, and a verdict was found for the defendant for the sum of 41 dollars 3 cents. If the Court should be of opinion, that the defendant was not entitled to avail mmself of his account in set-off, a new trial was to be granted ; unless they should likewise be of opinion, that the defendant was entitled to prove the above facts, except as to the clover seed, in defence, without availing himself of his account filed in set-off; in which case a general verdict, that the defendant never promised, was to be entered.
    
      Sept. 28th.
    
    
      Sept. 30th.
    
    
      Bliss, Dwight, and Bliss junior, for the plaintiff.
    The defendant’s account could not be filed as a set-off under St. 1784, c. 28, § 12, because an action for money had and received and for money paid, is not among those enumerated in that statute ; nor under St. 1793, c. 75, § 4, because the account is notcc for goods delivered, moneys paid, or services done.” Holland v. Makepeace, 8 Mass. R. 418; Holland v. Hopkins, 2 Bos. & Pul. 243. But the money here was neither paid by the defendant, nor received by the plaintiff to his use ; it was the proceeds of property which had been pledged, upon a sale made after the pledge had become absolute. If the account was properly filed under St. 1793, c 75, a judgment cannot be rendered for a balance due to the defendant, for that is permitted only in the case of a set-off under the statute of 1784. The two statutes are not to be construed together, as they are not m pari materie; the statute of 1784 being applicable to mutual claims by book accounts, and the statute of 1793 having reference to the statute of limitations, and being designed to prevent the defendant’s claim from being outlawed. Bac. Abr. Statute, 1,3.
    
    The evidence produced by the defendant was not admis sible to prove a payment. To constitute a payment there must be an agreement, express or implied, to accept the money in satisfaction of the debt. Peytoe’s case, 9 Co. 80 b; Paine v. Masters, 1 Str. 573; Young v. Rudd, 5 Mod. 86. Here the money was paid to the plaintiff for his own use, upon a sale of land to which the defendant had ceased to have any claim.
    
      E. H. Mills, Bates, and Jishmun, for the defendant,
    cited Richards v. Blood, 17 Mass. R. 66.
   Per Curiam.

It has been decided, that under a reasonable construction of St. 1793, c. 75, which allows a set-off of moneys paid, the defendant may file an account for money had and received. Perhaps, by a fiction of law, money received to his use may be considered as money which he has paid. We see no valid objection to the filing of the account in the present case.

In regard to entering up judgment for the defendant, for a balance found in his favor, it is true that this is allowed, in express terms, only by the statute of 1784; but the statute-of 1793 is manifestly a part of the same system. The first statute having provided for a set-off, and determined what should be the effects of it, and the last having merely extended it to different subjects, the consequences of a set-off must be understood to apply to an account filed in pursuance of this last statute.

But a new trial must be granted, because it does not appear that the jury passed upon the principal fact on which the defendant’s right to a balance is sustained. As it appears that the proceeds of the land sold by the plaintiff were allowed to the defendant, in the adjustment by the jury, and as that land had become, by the contract, the indefeasible property of the plaintiff, this allowance was wrong, unless the plaintiff had waived or relinquished his right; and although the judge reports that there was evidence tending to prove that fact, it does not appear that the jury were required to consider it, or that they did pass upon that evidence

JVeto trial granted. 
      
       See Revised Stat. c. 96, § 3.
     
      
       See Revised Stat. e. 96, § 22.
     