Toppan v. Jenness

Bell, J. The Revised Statutes, ch. 187, § 10, p. 376, seem to us entirely decisive as to the question whether the defendant could avail himself of the order of Dennet and the plaintiff’s acceptance, as a set-off. “ No debt or demand shall be set off as aforesaid unless a right of action existed thereon at the commencement of the plaintiff’s action.” The right of action upon the acceptance, depended entirely upon the fact whether the condition, upon which the acceptor had agreed to pay, was performed or not; and as no right of action could exist till then, if; could not be set off by the terms of the statute. [234] The case of The Pemigiwasset Bank v. Brackett, 4 N. H. Rep. 557, is conclusive as tb the effect of the payment after action brought, that it cannot go in bar of the action, unless specially pleaded puis darrein continuance, in bar of the further maintenance of the action. It has always, so far as we are aware, been tbe practice for tbe plaintiff’s counsel to open and close tbe case when tbe general issue is pleaded, whatever may be tbe nature of tbe controversy. Ayer v. Austin, 6 Pick. 225. Judgment on the Verdict.