2798 ARTICLE 75

that he could sue for it at law. Legal claims only form subjects of set-off in a court
of law. Milburn v. Guyther, 8 Gill, 92. And see Tyrrell v. Tyrrell, 54 Md. 169; Miller
v. Lea, 35 Md. 396; Wilson v. Keedy, 8 Gill, 197; Annan v. Houck, 4 Gill, 326; Hall v.
Creswell, 12 G. & J. 51.

Nature and object of set-off; claim must be suable for in court of law. Joint debt
may be set-off against separate debt, or vice versa. Separate debt may be set-off
against joint and several debt, and vice versa; judgment for excess should be for de-
fendant only whose separate claim is set-off. Cohen v. Karp, 143 Md. 210.

Set-off is unknown to common law; object thereof. The debts must be mutual
between the parties in their own rights, must be the same kind or quality, and be
certainly and clearly ascertained or liquidated. Damages held to be unliquidated. (This
case was decided before act of 1914, ch. 393, became effective.) Westminster M. & F.
Co. v. Coffman, 123 Md. 623. And see Impervious Products Co. v. Gray, 127 Md. 67.

A defendant held under the pleadings to be entitled to a set-off under this and
preceding section, and to a verdict for any amount jury might find to be due him
in excess of plaintiff's claim. (The contract in this case was made prior to act of 1914,
ch. 393.) Cowan v. Meyer, 125 Md. 468.

A promissory note due by plaintiff to defendant may be set-off in an action on an
open policy of insurance. When claims are "mutual." This section is to be liberally
construed. Baltimore, etc., Co. v, M'Fadon, 4 H. & J. 41. And see Scott v, Scott,
17 Md. 78.

A liability for the breach of a contract of employment, measure of damages being
fixed by contract, is a proper subject of set-off in a suit by employer for money due
by employee. Cumberland, etc., R. R. v. Slack, 45 Md. 180.

In a suit against a physician for damages growing out of his resuming practice after
a sale of his good-will to plaintiff with an agreement not to resume practice, defendant
may set-off the balance due by plaintiff under said contract. Warfield v. Booth, 33
Md. 74. And see Dyer v. Dorsey, 1 G. & J. 440.

The defendant may set-off a note of plaintiff's which former purchased after pendency
of suit. Clarke v. Magruder, 2 H. & J. 77; Foley v. Mason, 6 Md. 51.

Claims for unliquidated damages are not proper subjects of set-off. Hearn v. Cullin,
54 Md. 542.

There can be no plea of set-off in actions ex delicto. Lee v. Rutledge, 51 Md. 317.

There is no right of set-off against the state. State v. B. & O. R. R. Co., 34 Md. 374.

Generally.

If plea of set-off limits defendant's demand to an amount equal to plaintiff's claim,
there can be no recovery against plaintiff save by amendment of such plea. The act
of 1876, ch. 398, held applicable. Boor v. Wilson, 48 Md. 315.

This section contemplates a trial and determination of claims of the respective
parties and judgment for the excess of one over other as proved. Under art. 75, sec.
183, plaintiff may dismiss his action before the argument upon facts has begun, so
that defendant may not proceed with his claim of set-off. Gildea v. Lund, 131 Md.
389 (decided prior to the act of 1920, ch. 661).

In Maryland, a defendant cannot recover' an affirmative judgment for unliquidated
damages, whether they grow out of the same or a different suit from that on which
suit was brought. History of this section and sec. 16. Norwood Paper Co. v. Columbia
Bag Co., 185 Fed. 454 (decided prior to act of 1914).

Where a defendant has pleaded set-off and proved the items which make up his
claim, he may recover a judgment against plaintiff for such sum as proof shows plaintiff
is indebted to him over and above amount of the plaintiff's claim; recoupment con-
trasted. Res adjudicata. Impervious Products Co. v. Gray, 127 Md. 67.

This and the preceding section referred to in holding that when landlord sues for
rent tenant may recoup any damages he has sustained by landlord's failure to comply
with his covenant to repair. Cramer v. Baugher, 130 Md. 217.

The object of the law in allowing a plea of set-off is to prevent circuity of action.
Stallings v. Gottschalk, 77 Md. 433; Strike v. McDonald, 2 H. & G. 227. And see
Strike's Case, 1 Bl. 79.

Set-off must be specially pleaded. Sangston v. Maitland, 11 G. & J. 286.

For cases dealing with set-off in equity, see Wilson v. Williams, 108 Md. 528;
Penniman v. Loney, 40 Md. 471; Smith v. Washington, etc. Co., 31 Md. 17; Scott v.
Scott, 17 Md. 78.

For an extensive note on set-off and recoupment, see Milburn v. Guyther, 8 Gill, 93.

Cited but not construed in Eschbach v. Bayley, 28 Md. 495.

See notes to sec. 16. For form of plea of set-off, see sec. 28, sub-sec. 52. As to
set-off where an agent or factor has become insolvent, see art. 2, sec. 7, et seq. As to
the application by the treasurer of the state's right of set-off, see art. 95, secs. 14 and 15.

See sec. 4.

An. Code, 1924, sec. 18. 1912, sec. 14. 1904, sec. 14. 1888, sec. 14. 1876, ch. 345.

18. No party, otherwise entitled to sue and recover in any suit at law
upon or under any promissory note, bill of exchange, bill of lading, ware-