Bankes v Jarvis: 1903

The plaintiff was his son’s agent. The son purchased a veterinary surgeon’s practice from the defendant, agreeing to pay the rent and indemnify the defendant against liability under a lease of premises from which the practice was carried on. The son then decided to leave the country, and gave the plaintiff authority to sell the practice. The plaintiff sold it on his son’s behalf back to the defendant, in a second transaction. The defendant owed andpound;50 under that second transaction, but the son owed the defendant andpound;21 for rent and a further andpound;30 for failure to perform covenants in the lease, under the first transaction. That was a quantified counterclaim for unliquidated damages. When the plaintiff sued the defendant for the andpound;50, the defendant claimed to be able to set off the andpound;5.
Held: A claim for unliquidated damages may be set off against a claim for debt.
Channell J said: ‘The Judicature Act and more especially the Rules distinctly put an unliquidated claim on the same footing as a liquidated claim for the purpose of set-off and consequently the defendant’s claim against the plaintiff’s son, which, if liquidated, could have been pleaded before the Judicature Act as a set-off to the plaintiff’s claim can now, although unliquidated be relied on as a defence to the extent of the claim.’


Channell J


[1903] 1 KB 549


England and Wales

Cited by:

CitedBritish Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
ExaminedHanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
CitedGeldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Lists of cited by and citing cases may be incomplete.

Equity, Litigation Practice

Updated: 07 June 2022; Ref: scu.247743