Adams v. Manning

Curia. The demand filed in set-off is not such as is provided for in the statute, which allows of set-offs in actions upon simple [145] contract. The set-off must be of goods sold and delivered, moneys paid, or services done. The demand, which the defendants claim to set off, appeared by the evidence to be for damages for negligence or unfaithful management of merchandise consigned to the plaintiffs for sale. The legislature never intended that a plaintiff should be surprised by a demand like this, in answer to his action upon a promissory note or bill of exchange, *or [ * 180 ] for goods sold and delivered, but would leave the party complaining to his independent remedy. There is always power in the Court to withhold judgment until the defendant, if he will use due diligence, shall obtain his judgment for damages; after which one judgment may be set off against the other, or one execution may balance the other. Defendants defaulted