Wisecarver v. Kincaid

The judgment of this court was entered November 24th 1876, Per Curiam. The principles stated in the case of Gilmore v. Reed, 26 P. F. Smith 462, rule this case. By the statute a set-off may be given in evidence under the plea of payment merely. But it is not [101] a logical conclusion thence that the Statute of Limitations, as affecting the set-off, may be avoided at any period of time after the bringing of the action, at the election of the defendant. In order to deprive the plaintiff of the benefit of the statute, he, defendant, must give notice of his intention to use the set-off, before the six years have terminated, otherwise they run on until the time the set-off is given in evidence. He must therefore either plead the set-off or give notice of it as special matter in due season. Judgment affirmed.