Sellick v. Fox , 12 Johns. 205 ( 1815 )

Per Curiam.

The set-off was properly rejected, according to the decision in Waring v. Lockwood, (10 Johns. Rep. 108.;) where it is expressly ruled, that if a defendant has any account or demand against, the plaintiff he. must plead it, or give notice of the set-off at the time of joining the issue ; and if he neglects to do so, he cannot make the set-off, afterwards, at the trial. This was not like the case of Smith v. Burke, (10 Johns. Rep. 110.) relied upon by the plaintiff in error. The defendant there produced his account at the time of joining the issue, amounting to 229 dollars and 34 cents,, by way of set-off, and to show the justice had not jurisdiction. The whole of the aecount was rejected, because, as the justice said, it was not fully substantiated: and this court say, although the sum proved might not amount to 200 dollars, so as to take away the jurisdiction of the justice, yet if it was substantiated to any sum less than 200 dollars, it ought to have been received. But had not the account been produced at the time of joining the issue, the decision would, doubtless, have been conformable to that of Waring v. Lockwood, for both causes were decided at the same term. The judgment must, therefore, be affirmed,

Judgment affirmed.