If there are several plaintiffs to the suit, no demand can be filed in set-off, unless it be due from all of them jointly. So, if there are several defendants, the demand to be filed by them in set-off, must be due to all of them jointly.

The maker of a note payable on demand may, in an action on the note, by an indorsee against him, file in set-off any demands which he may have against the payee, and which he could have filed if the payee had brought the action. (9 Metc. 367; Laws 1839, с. 121.)

In an action by the endorsee against the maker of a negotiable note endorsed when over due, the maker can avail himself of any payments or off-sets, or other matter of defence, which existed between himself and the promisee, at the time of the actual endorsement and transfer of the note to the holder. But he cannot file in off-set any claim against the promisee, that he may acquire after the note overdue is endorsed, although he had no notice of such endorsement. (5 Pick. 312; 6 Metc. 7.)

In an action by an insurance company against an individual, the defendant cannot file in set-off a claim for damages upon a policy of insurance, for an alleged loss, when the claim is denied by the insurers, and the legality of such claim is undecided, and the amount of damages wholly unliquidated. (9 Metc. 42.)

To entitle a defendant to a set-off, he must file a statement of his demands in court or in the clerk's office, at the time at which the action is entered, or within such further time as the court shall for special reasons allow, and must give written notice to the plaintiff or his attorney.

Where a person has a claim against a party suing him, which he cannot avail himself of by way of set-off, he should immediately commence suit on the claim, and with the permission of the court off-set one judgment against the other.

Executions between the same parties may be set-off, one against the other, in the following manner:-The debtor can deliver his execution to the same officer who holds the other execution, and he shall set-off one against the other, and the balance due on the larger execution may be collected in the same manner as if there had been no set off. Such set-off cannot be made, unless the creditor in one of the executions is in the same capacity and trust as the debtor in the other; nor can it be made where one execution has been lawfully assigned before the creditor in the other execution becomes entitled to the sum due therein; nor where there are several creditors or debtors in one and not in the other; nor shall it be allowed as to so much of the first execution, as may be due to the attorney in that suit, for his fees and disbursements.

UNLAWFUL ATTACHMENT AND ARREST.

An officer cannot break open a dwelling house, by forcing the outer door or windows, for the purpose of making an attachment of the owner's goods; and not only is such breaking an unlawful act, but the attachment made by means of it, is unlawful and invalid. (12 Pick. 270.) Neither can an officer, in the execution of a civil process, force the outer door or windows of a dwelling house, for the purpose of arresting the occupant or any of his family, who have their ordinary residence there: and not only the children and the domestic servants of the occupant are entitled to this protection, but also permanent boarders, or those who have made the house their home. But where a stranger, whose ordinary residence is elsewhere, upon a pursuit, takes refuge in the house of another, the house is not his castle, and the officer may break open the doors or windows, in order to execute his process; so, if one, upon an escape after an arrest, flee into his own house, it shall not protect him. (13 Mass. 523.)

But this restriction applies only to dwelling houses, and an officer may lawfully break open the door of any other building to make an attachment or arrest (16 Pick., 553); so, where he has gained a lawful entrance through the outer door, he may break open the doors of the several apartments to execute civil process.

An arrest, upon civil process, on Sunday, is illegal. A defendant, however, who has escaped, may be retaken on Sunday,

In delivering possession of lands recovered in a real action, the officer may break outer doors, and use force to expel the occupier, if necessary. (2 Dane's Ab., 65.)

INSOLVENT LAWS.

(Laws of 1838, 41, 44, '48.)

Who may petition to take the benefit of the insolvent laws. - Any debtor, owing not less than two hundred dollars, may by petition to the Commissioner of Insolvency for the county within which he resides or in which he has his usual place of business, setting forth his inability to pay all his debts, and his willingness to assign all his estate and effects for the benefit of his creditors, take the benefit of the insolvent laws.

In what cases creditor may force debtor into insolvency. There are certain cases in which a creditor having a demand of one hundred dollars, provable against the debtor's estate, may, at any time within ninety days, and not after, petition the commissioner of insolvency for the county in which the debtor resides, to issue a warrant to take possession of the debtor's estate for the purpose of distributing according to the insolvent laws. This petition must set forth, either :

Ist, That the debtor has been arrested on mesne process, on a demand of one hundred dollars or upwards, provable against his estate, and that he did not give bail according to law before the return day of said process: or,

2nd, That he has actually been in prison for more than thirty days, either on mesne process, or execution issuing upon a debt of one hundred dollars or upwards, provable against the debtor's estate : or,

3d, That his goods or estate have been attached on mesne process for a debt of one hundred dollars or upwards, provable against the debtor's estate, and that he did not give bond with sufficient sureties, before the end of the term at which such process was returnable, to pay the plaintiff such sum as he might recover against him, within thirty days after the final judgment.

Effect of Petition. - If the facts set forth in the petition, whether of the debtor or creditor, appear to the commissioner to be true, he shall issue a warrant, returnable at any time not less than ten nor more than sixty days from the issuing thereof, to a messenger, (who must be a sheriff or deputy sheriff of said county,) ordering him to take possession of all the estate, real and personal, of such debtor, excepting such as may be by law exempted from attachment, and of all the deeds, books of account, and papers of such debtor, and to keep the same safely until the appointment of assignees.

Debtor must furnish Messenger with list of creditors within three days after the date of the warrant; and the messenger, in addition to publishing a notice of the first meeting in the newspapers, must send written notice, to the creditors named on the schedule, of the time and place of the first meeting of the creditors.

First meeting: choice of assignees. - At the first meeting the debtor must produce a full schedule of his assets. The choice of an assignee or assignees is also made at the first meeting, by the greater part in value of the creditors according to the debts then proved: provided, that when there are as many as five creditors and less than ten, two votes shall be required to elect the assignee; and if there are ten or more creditors present, three votes. If no choice is made, the commissioner appoints the assignee.

The assignment, and the duty of the assignee under it. All the property of the debtor of every description, excepting such as is by law exempted from attachment, including all debts due him, and all liens, securities, rights of action, rights of redemption, &c., pass into the hands of the assignee.

It is the duty of the assignee to convert the debtor's estate into money, and collect the debts as soon as he reasonably may, and after deducting the fees of the commissioner, messenger, and clerk, and his own reasonable compensation, distribute the balance, upon the order of the commissioner, to those creditors who have proved their claims.

What debts may be proved against insolvent's estate. - 1st. All debts due and payable from the debtor, at the date of the first publication of the notice of issuing the warrant.

2nd. All debts then due, though not then payable, with a rebate or deduction of interest, in case interest be not payable until the debt becomes so.

3rd. All moneys due on any bottomry or respondentia bond or policy of insurance, in case the contingency or loss should happen before payment of the first dividend.

4th. If any debtor has made or endorsed any bill or note, or if any person has paid any sum for him as endorser or surety, after the first publication of the notice, and before the payment of the first dividend, such debt may be proved precisely as if due and payable previous to such first publication.

5th. All demands against the debtor for any goods or chattels wrongfully taken or withheld by him.

Oath administered to a creditor to prove a claim :" I, A. B., do swear that, of ——, by (or against,) whom proceedings in insolvency have been instituted, at and before the date of such proceedings was, and still is, justly and truly indebted to me in the sum of for which sum, or any part thereof, I have not, nor has any other person to my use, to my knowledge or belief, received any security or satisfaction whatever, beyond what has been disposed of agreeably to law. And I do further swear, that the said claim was not procured by me for the purpose of influencing the proceedings in this case.

Said oath may be administered by any justice of the peace, where the creditor resides more than five miles from the place of meeting of the creditors.*

Provision where the creditor is secured by mortgage, pledge, or lien. - Any creditor who has a lien or mortgage upon the property of the debtor, may cause the same to be sold under the direction of the commissioner, and the proceeds applied to his debt, so far as they will go; and may prove the balance of the debt against the debtor's estate; or he may give up the property and prove his whole claim. But if the property be neither sold, or given up as aforesaid, then the creditor shall not be allowed to prove any part of his debt.