1 We are of opinion that the plaintiff''s objection to the set-off allowed by the Courts below is valid. u/s III, Act X of 1877, it is only an ascertained sum of money legally recoverable that can be the subject of setoff, and it is necessary that in such claim both parties fill the same character as they fill in the plaintiff''s suit, the claim must be certain and determinate and actually due and in the same right and of the same kind. The claim by the defendants in this suit, for estimated damages to property mortgaged as security for money lent, does not meet the requirements of the law, so as to be capable of being set-off against the plaintiff''s claim for the money lent.
2. It has been held that mesne profits is in the nature of damages and is not a debt so as to form a subject of sot-off Ruteerummom Opadhya v. Grijanund Opadhya 7 WR 218; and it was held in a suit by a carrier for the price of the carriage of goods that the defendant cannot set-off the amount of damages claimed against the plaintiff for injury to the goods, but must sue to recover the damage in a separate suit Scanlan v. Herrold 10 W.R. 295. We must therefore allow the plaintiff''s appeal.
