promise, or that both the agreement and due-bill were given as compensation for long and faithful services actually rendered by the plaintiff, and no distinct proof that those services had been fully paid for. In such circumstances we cannot say there was no evidence of any obligation, legal or moral, to give the due-bill in question; and, such being the case, there being nothing else to impeach the right of recovery, the court below was right in directing a verdict for the plaintiff. Judgment affirmed. NOTE. Where an obligation to pay once existed, a moral obligation is sufficient consideration to support a subsequent contract to pay, although there may be no legal obligation. Edwards v. Braasted, (Mich.) 16 N. W. Rep. 261. It is held in Allen v. Bryson, (Iowa,) 25 N. W. Rep. 820, that, where no obligation to pay existed until the promise was made, the promise cannot be enforced. The court say: "We do not believe a case can be found where a moral obligation alone has been held to be sufficient consideration for a subsequent promise." SEITZINGER, Ex'r, v. ALSPACH.1 (Supreme Court of Pennsylvania. May 3, 1886., 1. STATUTE OF LIMITATIONS-PLEA OF SET-OFF. Where set-off is pleaded, the statute of limitations (act March 27, 1713) will bar any item of it extending six years beyond the date of the filing of the plea.2 2. SAME-MUTUAL ACCOUNTS. Mutual accounts will take a case out of the statute of limitations if any one item in either account is within six years. Such mutual accounts need not necessarily be between merchants; they may be between other persons.2 8. SAME-EXTINGUISHMENT OF DEBTS-CONCURRENT ACTS OF PARTIES. Mutual indebtedness does not work an extinguishment of the respective debts without the application of them to each other by the concurrent acts of the parties. Errors to common pleas, Schuylkill county. Case, by Philip Alspach against Jacob R. Seitzinger, executor of the will of Nicolas Seitzinger, deceased, to recover $461.70 for work done and materials furnished by plaintiff for defendant's testator. There was no dispute as to the value or amount of said work, labor, and materials, nor was there any dispute as to the credits allowed in the accounts as filed, so far as they went; but defendant claimed that he had not been allowed credit for all the amounts to which he was legally entitled. This action had been originally brought against Nicolas Seitzinger in his lifetime, on February 23, 1877. After his death, his executor, by scire facias, was substituted as defendant, and he, on May 25, 1881, pleaded "set-off." Defendant sought to charge plaintiff for the use and occupation of certain real estate of his testator, and claimed that the amount due for such use and occupation from 1866 to 1876 should be included as a credit in said accounts. The accounts show that there were mutual dealings between plaintiff and Nicolas Seitzinger; that while the 1Edited by Messrs. Hatfield and Cresswell, of the Philadelphia bar. 2 See note at end of case. former furnished labor, work, and materials, the latter furnished him with lumber, etc. It was claimed, upon the part of the defense, that all of the amount due for the use and occupation of said real estate should have been allowed as a credit in said accounts. There was no dispute as to the fact of such use and occupation, but only as to its extent, and to what such use was worth. Plaintiff denied defendant's right to credit for such use and occupation for any period back of May 25, 1875, six years before the filing of defendant's plea of "set-off," for the reason that they were barred by the statute of limitations. On the trial before PERSHING, P. J., plaintiff requested the court to charge the jury that "In considering the claim for rent in this case as made by the defendant in his plea of set-off, the jury cannot go back of May 25, 1875; that all claims for rent before such date are barred by the statute of limitations, and the jury must reject such claims." Answer. "This raises the important legal question in the case: the right of the plaintiff here to set up the statute of limitations against the plea of set-off filed by the defendant on May 25, 1881. After a careful examination of the law upon this subject, I have come to the conclusion that this point correctly states it, and that it must be affirmed. Set-off is virtually cross-action. As it stands, it is virtually an action brought by Seitzinger against Alspach to recover this rent. Our supreme court, in several recent cases, (Gilmore v. Reed, 76 Pa. St. 464; Wisecarver v. Kincaid, 83 Pa. St. 100; Verrier v. Guillou, 97 Pa. St. 68,) have held that where set-off is pleaded, the statute of limitations will bar any item of it extending six years beyond the date of the filing of the plea; and, as this plea was filed on May 25, 1881, all claims set up under the plea prior to May 25, 1875, must be excluded. On careful examination I have been unable to distinguish this case from the cases in which this rule has been applied." Defendant requested the court to charge that— "If the jury believe that there were mutual dealings between plaintiff and defendant, and any one item in either account is within six years, the statute of limitations does not apply to any part of either account." Answer. "That is correct, as a general principle, governing mutual dealings between two parties; but we do not affirm it as applicable to this case, in view of the plea of set-off filed by the defendant, and the evidence offered under it." Verdict and judgment for plaintiff for full amount claimed, whereupon defendant took this writ. Hughes & Farquhar, for plaintiff in error. Where there have been mutual accounts between the parties to a suit within six years from the beginning of a suit, the statute of limitations does not apply to any part of either account. Catlin v. Skoulding, 6 Term R. 189; Van Swearnigen v. Harris, 1 Watts & S. 356; Chambers v. Marks, 25 Pa. St. 296; Mandeville v. Wilson, 5 Cranch, 15; Chamberlin v. Cuyler, 9 Wend. 126. There were such mutual accounts between the parties here as prevented the bar of the statute. Lowber v. Smith, 7 Pa. St. 381; Chambers v. Marks, supra; Ang. Lim. § 57, pp. 71, 72; also § 147, p. 132; also § 140, 135. p. John W. Ryon and H. B. Graeff, for defendant in errorRelied upon the cases cited by the court below, and contended that, as this was not a case of mutual accounts between merchants, but other persons, the statute of limitations was a bar. Marseilles v. Kenton, 17 Pa. St. 238, 245. PER CURIAM. The court declared the law correctly in regard to mutual accounts that are such as will be taken out of the statute of limita tions. It is true, the mutual accounts need not necessarily be between merchants. Other persons may so deal together, if there be reciprocal accounts between them, as in like manner to take them out of the statute. There is nothing, however, in the facts of this case to prevent the statute of limitations being successfully interposed to all the items claimed which were six years old when the set-off was pleaded. Gilmore v. Reed, 76 Pa. St. 462. Mutual indebtedness does not work an extinguishment of the respective debts, without an application of them to each other by the concurrent acts of the parties. Carmalt v. Post, 8 Watts, 406; Beaty v. Bordwell, 91 Pa. St. 438. Judgment affirmed. NOTE For a full discussion of the question of the statute of limitations, see Stewart v. McBurney, (Pa.) 1 Atl. Rep. 639, and note, 641-654. But a counter-claim, barred by the statute of limitations, may be pleaded if it was the property of the party when it became barred, and was not barred when the claim sued on originated. Folsom v. Winch, (Iowa,) 19 N. W. Rep. 305; overruling Folsom v. Winch, (Iowa,) 10 N. W. Rep. 629. Upon a store account the defendant had delivered to the plaintiff small quantities of merchandise at different times; and it was held a case of "mutual accounts" or "reciprocal de ands," to which the statute of limitations did not apply. Green v. Disbrow 79 N. Y. 1. GILES v. CAVANAUGH and another.1 (Supreme Court of Pennsylvania. May 10, 1886.) APPEAL AFFIDAVIT-JUDGMENT-STRIking Off. Judgment was obtained in an action for trespass vi et armis. The defendant appealed to the court of common pleas, having made affidavit that she was not guilty of the trespass, and that the appeal was not for delay. A judgment having been entered in the court of common pleas for want of a sufficient affidavit of defense, the court, subsequently, on motion, struck off the same; holding that the affidavit upon which the appeal was taken was sufficient to prevent judgment; that, the action being ex delicto, the entry of judg ment was improper; and that, therefore, the court rightly struck off the same. Error to common pleas, Erie county. Trespass vi et armis, by Michael Giles against Ellen Cavanaugh and Frank Healy. Michael Giles was the tenant of Ellen Cavanaugh, and, becoming in arrears for rent, she issued her landlord's warrant, and placed it in the hands of Frank Healy, a constable of the city of Erie, who levied upon goods belonging to Giles upon the demised premises. The sale of these goods, being advertised according to law, was adjourned two or three times, at the instance of Giles, for the purpose of giving him time to pay. Finally Giles informed the constable that they might sell the property, as he was unable to pay, and he assisted the constable in taking the goods out of the house. The goods were sold, and purchased by Mrs. Cavanaugh. Giles subsequently brought an action of trespass vi et armis against Mrs. Cavanaugh and the constable, before the recorder of the city of Erie; alleging that as the sale was made without an ap Edited by Messrs. Hatfield and Cresswell, of the Philadelphia bar. praisement, as required by law, the defendants were trespassers. The defendants were not present at the hearing, Mrs. Cavanaugh having gone in search of her counsel, and in their absence judgment was entered in favor of plaintiff for $105.50 and costs. Mrs. Cavanaugh subsequently appealed to the court of common pleas, having filed with the recorder an affidavit that she was not guilty of the trespass charged, and that the appeal was not taken for delay. The plaintiff then moved for judgment for want of an affidavit of defense, under section 9, act March 24, 1877, (P. L. 47,) which was entered by the court. Defendants then had an amended affidavit of defense prepared, and moved the court to strike off the judgment, and allow them to file the amended affidavit; which motion was refused. Plaintiff's claim was then reliquidated and execution issued. Defendants then moved the court for a rehearing of their motion to strike off the judgment, etc. This motion was granted, and after argument the court struck off the judgment, and allowed the amended. affidavit of defense to stand, no opinion being filed. From the ruling of the court, plaintiff took this writ. A. J. Foster, for plaintiff in error. Section 9, act March 24, 1877, (P. L. 47,) requires an affidavit of defense upon appeal from the recorder. No such affidavit was filed; the affidavit merely stating a conclusion of law. This is insufficient. Stitt v. Garrett, 3 Whart. 281; Peck v. Jones, 70 Pa. St. 83. The court, therefore, clearly erred in striking off the judgment, and allowing the filing of the amended affidavit. J. Ross Thompson, for defendant in error Cited no authorities, but contended that the affidavit upon which the appeal was taken was sufficient. The rules of court provide only for judgments by default for want of an affidavit of defense in actions ex contractu and not ex delicto, as here. The act of 1877, providing that the court shall grant judgment for want of sufficient affidavit of defense on appeal, also provides that it shall be done "as in suits brought in said court, "and the above rule of court sets forth the kind of action in which judgment may be so taken. PER CURIAM. Its nature was not altered by an appeal from the judgment of the recorder. No other affidavit was necessary than that required to secure the appeal. It follows that the court of common pleas did right in striking off the judg ment entered against the defendants for want of an affidavit of defense. The judgment is affirmed. The action in this case was trespass. SCOTT v. HART, to Use, etc.1 (Supreme Court of Pennsylvania. May 24, 1886.) 1. EVIDENCE-RELEVANCY-CORROBORATION-ADMISSIBILITY. Testimony not relating to the particular thing in action, if it tends to corroborate the evidence of other witnesses, is admissible. 'Edited by Messrs. Hatfield aad Cresswell, of the Philadelphia bar. 2. ERROR-CHARGE OF THE COURT-REVERSAL. While some portions of the charge of the court may be open to criticism, yet if it fairly presents the whole case to the jury, and is not misleading in its effect, nor parti. in its character, the supreme court will not reverse. Error to common pleas, McKean county. Feigned issue between William Hart, to use of N. P. Fassett, against A. C. Scott. In June, 1881, A. C. Scott purchased of William Hart certain oil property for $10,000, giving in payment eight judgment notes for $1,000 each, payable at intervals of two months apart, and one of $2,000 payable in eighteen months. These notes were secured by a bond and mortgage. To induce Scott to purchase, Hart represented to him that the property was clear of incumbrances, except a mortgage of $2,500, which had been paid, and would be discharged of record without delay. This mortgage was not satisfied, however. Proceedings were begun for foreclosure, and Scott, to save his property, was compelled to pay about $1,700. Of the sum of $10,000, Scott had paid to Hart, before the trial, $8,300, in addition to the sum paid on said mortgage. On July 6, 1881, Hart sold two of the first notes to W. F. Corey, and shortly afterwards Corey purchased the last of the $1,000 notes. In November, 1881, he purchased the $2,000 note, and on June 29, 1883, caused a judgment to be entered on said note and afterwards assigned it to Fassett. On June 20, 1883, the court, on motion of Scott, opened this judgment as to $1,700, and directed an issue to be formed to try the facts as above. On the trial, before OLMSTED, P. J., Corey testified that he had had a conversation with Scott, before he purchased the first two notes, in which he alleges Scott said he had no defense to the notes. This was denied by Scott. Plaintiff offered in evidence the deposition of one W. T. Coleman, wherein he testified that he had purchased three of the notes which had been sold to Corey, (not the one in suit;) that he had a conversation with Scott before purchasing the notes, and asked him if they were all right, and if there was any offset against them, to which Scott replied that the notes were all right, and that there were no offsets. The admission of this deposition was objected to for the reason that the conversation testified to by Coleman was two months after the alleged conversation of Corey with Scott, and was not in reference to it, and was not as to the note in suit, but to a separate transaction, and was but a declaration in the presence of Corey, and not to him. Objection overruled, and deposition admitted. The court charged the jury, inter alia, as follows: * * "This will be a hard case for Scott if he has to pay the Hart judgment, against which he had a good defense, and it will be equally hard for Fassett if he loses the judgment on the strength of statements inade by Scott to Corey, and by Corey to him, by which he was induced to purchase this note. * The solution of this question depends upon the testimony of Corey as corroborated by Coleman upon one hand, and the testimony of Scott upon the other. * * * This depends on the testimony of these three witnesses bearing on this question, Corey and Coleman on the one hand, and Scott on the other hand. If you believe the testimony of Corey and Coleman, then the plaintiff is entitled to recover. * It would be unjust and in |