Serjeant v. Holmes

Per Curiam. The act* directs, that if any defendant shall neglect or refuse to set off any account or demand he has against the plaintiff, such defendant shall be for ever thereafter precluded from having any action against , . the plaintiff to recover the same, or any part thereof, The true construction is, that the defendant must set off, the very first opportunity he has for that purpose. By omitting to set off his demand against the first action, the defendant lost his right of set-off, and his demand became ° for ever extinguished. The justice was, therefore, right -n refusing the set* off in the second suit. Judgment affirmed. Footnotes [*] Laws of N. Y. vol. 1. p. 494. § 9.