action in favor of the plaintiff could be included in one, the court may order them consolidated in one action; and so also in case the defendant's causes of action in his favor, against the plaintiff, can be included in one defence.

Any person against whom another alleges he has a claim for money or property, may bring a suit to determine the alleged claim in such action, and the plaintiff may compel the defendant to substantiate his alleged claim, if not, the court is to render a judgment in the matter.

Where a person is security for another, an action may be brought by the security against the principal and the creditor, to compel the principal debtor to pay, and the creditor to collect the debt, on account of which the plaintiff is liable as security.(a)

ONE CLAIM TO BE SET OFF AGAINST ANOTHER.

Where the plaintiff has claims against the defendant, who is also in possession of claims against him, after the plaintiff brings suit on all his claims against the defendant, the defendant brings in all his claims against the plaintiff. Now, the character of the claims for which the plaintiff can sue the defendant in one action, include several kinds, but they all grow out of contract express or implied, such as note, bill of exchange, account, contract for the delivery of a specific amount of goods at a specific price named in the contract, and due at the time suit is brought.

The claims which the defendant has the right to set off against these claims are those growing out of contracts express or implied, and due at the time suit is brought; and after the court or jury pass upon them, the amount due each from the other is to be ascertained and set forth in the verdict, striking the balance which shows for whom and how much the judgment should be entered for.(b)

(a) 2 Cal. Stat. p. 141, c. 3. (b) 2 Cal. Stat. p. 58, s. 48, p. 142, s. 574, 576.

COUNTER CLAIMS OR SET-OFFS.

Many cases arise between an assignee of a thing in action. and the obligor.

In reference to negotiable promissory notes and bills of exchange in the hands of an assignee, for a valuable consideration received by him from the assignor in good faith, before maturity, no question or dispute can occur. But in reference to those received by the assignee after maturity, any set-off or defence which the obligor had at the time he received notice of the assignment, can be made by the obligor against the assignee, as well as if suit had been brought by the original payee of the note or bill of exchange.

As to any other thing in action, such as notes not negotiable, contracts for the payment of money, accounts, &c., the assignee stands precisely in the place of the assignor or original party; and the defendant in a suit by an assignee founded thereon, is entitled to set off, in that action, any claim in his favor against the original party which he had before notice of the assignment, as he could if the suit was by such original party. As, for example, the plaintiff was assignee of a note, not negotiable, for $500, payable to A., indorsed by A. to plaintiff for good consideration and in good faith. Before the defendant knew of the assignment, he paid to A. $300, and allowed A. to run up an account on his books for $200; proof of the payment and account is a good defence to the action. But suppose no payment was made, over and above the book account, the assignee would be entitled to recover the amount of the note after deducting the account.

But in reference to set-offs between the original parties to an action, it must be remembered, that causes of action growing out of contracts express or implied, may be joined together in one action; all of which may be defended by the defendant by as many defences to each cause of action as he may have. In addition thereto, the defendant may present in his answer in the same action, as many causes of action growing out of contracts express or implied, as he may have against the plaintiff; and upon the plaintiff and defendant's

claims being passed upon and counted up, the defendant has the right to set off as much of his demands against the plaintiff as will compensate and equal the demands of the plaintiff against him. Now the demands which can be sued upon in one action, are such as may be sued separately, and judgment had upon each; and must be due at the time of the commencement of the suit; and those which the defendant can present as set-offs to them must be of the same character, and be set forth in the answer as counter claims.

The claims that can be set off against each other must exist in the same right, that is, the claims must be coming from defendant to plaintiff, and from plaintiff to defendant, except where a person sues in a representative capacity; there the claims in favor of and against the intestate or ward, and defendant, can be set off against each other. The same rule holds, when a representative is a defendant.

If there are mutual demands between partners and a third person, and one of the partners is dead, the survivor can set off the claim in favor of the firm against the third person's claim, as surviving partner.

If an agent is indebted to another and conceals his agency, and the creditor buys goods of the agent belonging to the principal, thinking they were the agent's, the creditor, in a suit brought against him by the principal for the goods. bought, can set off his claim against the agent.

The defendant must file his answer, if the counter claim is not founded on a written instrument for money, or a specified amount of property at a fixed price named in it, or on an account. If, however, the counter claim is founded on a written instrument for money, or a specified amount of property, or on an account, the original or copies must be left with the answer; and the defendant must make good any objections which may be urged by the plaintiff against his counter claim or set-off on the trial. In this proceeding the defendant acts as a plaintiff. But the plaintiff, on account of his being such, is excused from filing or putting in any answer or reply to the defendant's claim, as he would be bound to do if the defendant had prosecuted an action for it; so that the defendant must be prepared on the trial to make

good his claim against any objection the plaintiff may urge there against a recovery on it.

The claims spoken of, growing out of contracts express or implied, are not to be understood as liquidated claims, their amounts settled and fixed as a debt, but may be unliquidated claims, their amounts not as yet ascertained; but they must be for the breach or violation of a contract express or implied, which upon the trial is to be ascertained or assessed by the jury or court, as the case may be.

There can be no set-off in actions for the taking and detention of personal property, for injuries to persons, for injury to personal or real property. The defences in these cases must depend upon something arising out of the subject of the suits, or connected therewith.(a)

REMEDIES.

The remedies administered by these courts in favor of a creditor, extend in contract claims to five hundred dollars and interest.(b) A creditor having a claim within the jurisdiction of a justice's court, may sue the same by presenting his claim to the justice in writing or orally, and have a summons issued thereon immediately.

First, if the claim is founded on a contract either express or implied, and for the direct payment of money sometime after the 1st day of July, 1851, mortgaged on and payable in the state, and is not secured by real or personal property; or secondly, in an action upon a contract against a non-resident; the plaintiff can have an attachment issued at the time of issuing the summons, and have the defendant's real and personal property, not exempt from execution, attached for the security of his debt, unless the defendant shall give security for the payment of the judgment rendered in the case.(c) To obtain this writ, the plaintiff, or some person for him, must testify by affidavit, showing the character of the debt, amount thereof and time when due, and file the same with the justice; and in addition, must execute

(a) 2 California Statutes, 58.

(b) 2 California Statutes, 134, 153. (b) 2 California Statutes, 138, 139, 66, secs. 124 to 141.

a written undertaking, with two or more sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment. The writ of attachment is to be issued and delivered to the sheriff or constable for execution. The writ must be immediately executed, and the property of the defendant, liable for execution, attached, if he does not at once give an undertaking with two sufficient sureties in an amount to satisfy such demand. If the undertaking is executed and delivered to the officer, the attachment is not to be served. But, if the defendant fails to give the required undertaking, the attachment is served by the officer having the writ, on property sufficient to satisfy the demand and costs. The writ is to be served on real property by leaving a copy of writ with the occupant of it, but, if no occupant, then by posting a copy on a conspicuous place thereon, and filing a copy and description of the property, with the recorder of the county. Personal property capable of manual delivery, by taking it into custody. Stock or shares, or interest in stock or shares, of any corporation or company, by leaving copy with the president or other head of the same, or secretary, cashier, or managing agent, and a notice stating that the stock or interest of the defendant is attached in pursuance of such writ.

Debts, credits, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession, or under his control such credits or other personal property, a copy and notice that the debts owing by him to the defendant, or the credits and other personal property in his possession, or under his control, belonging to the defendant, are attached in pursuance of such writ. The plaintiff may, by giving the officer notice in writing, require the writ served on any person owing a debt, or having a credit to the defendant, or has under his control other personal property belonging to the defendant, subject to the attachment. Upon receiving such notice, the officer is bound to serve the attachment as required, and the person on whom the writ is served, if he has in his