Ulrich v. Berger

Per Curiam. — Set-off is a creature of positive law, and exists only where it is authorized by statute. Our Act allows it only in favour of a defendant; and there consequently cannot be such a thing as set-off against set-off. A lawsuit might become very inconveniently complicated were it otherwise, as the contest might, in the end, be shifted from its original ground, and a plaintiff recover a different and greater demand than the one laid in his declaration. It is certain, then, that the law did not apply the debts, in this case, to the extinguishment of each other; for had there been such a principle of application at the common law, a statute of set-off would have been unnecessary, inasmuch as defalcation would have been actual payment in every case. Now whether the parties themselves had made the application in this case, was all that remained to be settled; and it was properly submitted to the jury as a question of fact, with pertinent remarks on the evidence. This is the whole case presented by the record, and we see no principle in it that could readily be made a subject of error. Judgment affirmed.