ASSUMPSIT. Plea of payment setting out, conformably to the statute, a charge, inter alia, of 200 dollars on a contract by which the plaintiff had agreed with the defendant, that if the latter would finish, at his own charge, a- boat which they had jointly undertaken to build, he would deliver him 100 barrels of pork to transport to New-Orleans, and pay him freight therefor at 2 dollars per barrel. The defendant avers performance on his part, and a breach on the part of the plaintiff.

Held, that this plea is insufficient under our statute of set-off} the contract stated sounding only in unliquidated damages.

Held, also, that there is no material difference between the debts which may be pleaded in payment under our statute, and those which may be set off under the statutes of 2 & 8 Geo, 2. 1 Tidd, 602-3. — 2 Johns. R. 150 (1).

So, If the action be for unliquidated damages, and not for a debt due, £he defendant cannot set off a debt against the plaintiff’s demand. 3 Stark. Ev. 1311. To authorize a set-off, says Ch. Kent, the debts must be between the parties in their own right, and must be of the same kind or quality, and be clearly ascertained or liquidated. Duncan v. Lyon, 3 Johns. Ch. R. 359. Vide Stat. 1817, p. 38; — 1823, p. 294.