1816. Assignees are not con cluded by putting up the premises to sell: they may make an experiment to see if the lease be found a pur- contract of sale afterwards went off, without HASTINGS and Others v. WILSON and Others. THE THE plaintiffs sued as executors of Sir Elijah Impey, Knt. deceased: the defendants were. assignees of Milton, a bankrupt. rent. This was an action of covenant for rent; and the question was, whether the defendants, in the character of assignees, were liable to the payment of The plaintiffs charged them as assignees of the term, by derivation from the first lessee Milton. Milton, who had occupied the premises in quesposit; but the tion, became a bankrupt in April 1815, when the defendants were chosen assignees. They paid a quarter's rent, and on the 8th of June put up the the assignees premises to auction; the premises were knocked down to a purchaser for 400l., who immediately paid a deposit of 991. Owing to some cause which that they were did not appear in evidence, but which was alleged liable to the by the plaintiffs' counsel to have been a misderent, as "as- scription of the premises, the purchaser refused to the estate, and complete the contract, and the purchase money. was returned. In February, 1816, the premises were again put up to auction, when, no purchaser offering, they were bought in by the assignees. shewing any reason why they did not enforce the sale: Held, payment of signees of all interest, &c. of the bank. rupt, in the premises." Best, serjeant, for the plaintiffs, contended, that under these circumstances the defendants were liable as assignees of the term. He admitted that assignees had a reasonable time to decide whether they would take the lease of which they find the bankrupt possessed, or not. That the mere act of putting the premises up to auction would not make the assignees liable; but in the present case a purchaser was found and accepted, and it was their fault that the premises were not sold: at all events, after the first treaty went off, they ought to have delivered up the premises; but they make a second attempt nine months after. How long a time were assignees to claim for their election, and to keep the landlord of premises without his rent in a state of uncertainty? Vaughan, serjeant, contrà, relied on Turner v. Richardson, 7 East 335. It was admitted in that case that assignees might make an experiment to see if the lease were beneficial: if they were concluded, by a mere offer of sale, their situation would be most perilous. There was no material distinction between the present case and the one cited. A purchaser was indeed found; but he is stated to have made an objection that objection might be reasonable, and not imputable to any misconduct in the assignees. If the mere offering to sell had been holden not to conclude the assignees, neither ought they to be concluded in a case where, after the offer to sell, the bidder has not perfected his bidding. GIBBS, C. J.-I am of opinion that the assignees are bound under the circumstances; I have no evidence to satisfy me why they did not enforce the contract of sale. They put up the premises to auction, find a purchaser, and receive a deposit. 1816. HASTINGS v. WILSON. 1816. In the absence of evidence to the contrary, I must presume that contract of sale to be now in force. HASTINGS The contract of sale fixes them with possession, v. WILSON. and they must shew why they did not enforce the sale. The plaintiffs had a verdict. Best, serjeant, and Parke, for the plaintiffs. Vaughan, serjeant, for the defendants. BITTINGS AFTER TRINITY TERM, AT GUILDHALL. 1816. BELL v. SHAW. THIS was an action of debt brought upon two TH July 10. Where to debt on bond, bonds, given by defendant to the plain- the defendant tiff; one for 8001, the other for 3001. There pleaded, that had been long and intricate accounts between the parties, and the plaintiff claimed a sum of money due to him for interest upon the two bonds. a 1,100l. The defendant pleaded non est factum, and set-off; in which he admitted 1,100l. to be due to the plaintiff, and no more; of which sum of he undertook to discharge himself by his The plaintiff replied generally, that more 1,100l. was due; to wit, the sum of 1750. 1,100l. was set-off. Vaughan, serjeant, for the defendant, contended, that it was incumbent on the plaintiff, by the issue which he had taken, to prove that more than 1,100l. was due from the defendant. Best, serjeant, contrà. GIBBS, C. J.-If the defendant plead a set-off to to prove that more than 1,150l. was due. 1816. BELL v. SHAW. debt upon bond, he is bound to state the precise sum due upon the bond, before he can set off any cross demand. He has admitted that 1,1007., the amount of the two bonds, is due, and he undertakes to discharge himself of that sum by his set-off: the issue which the plaintiff has taken is, that more than 1,100l. was due; viz. the sum of 17501.; but that is pleaded under a scilicet. I am of opinion, therefore, that the plaintiff must prove that more than 1,100l. was due. The defendant's counsel then proved a set-off, to the amount of 1,100., and the plaintiff was nonsuited. Best and Copley, serjeants, and Marshall, for the plaintiff. Vaughan, serjeant, and Comyn, for the defend ant. Vide Symonds v. Knox, 3 ritt, 4 T. R. 460. T. R. 65. Grimwood v. Bar |