
    Serjeant against Holmes.
    ALBANY,
    August, 1808.
    In suits before peace^the de^ fendant must setoff his demand against the plaintiff, the first opportunity he has pose,*01-^he will be precluded Thus, where two suits by the same plaintiff, against the «n^were^ending at the same time, and the defendant suffeed judgment to pass against him in the set^ff "his^clemand in the second suit, it was held, that beeÍTmade^in tiie first suit, Me to'be.'aV lowed m the second.
    ON certiorari. The plaintiff below commenced two su*ts against the defendant, by summons, issued at the same time, and returnable at the same hour, before the . . r , . , . same justice. On the return or the process, the plaintiff decjared jn one 0f the suits on a note for 20 dollars, and the defendant, on being asked by the justice whether he hac-l any defence, answered that he had none. The justice thereupon gave judgment for the plaintiff for the amount of the note. The plaintiff then declared, imme¿iatejY afterwards, in the second action, on a note for J * * six dollars, and the defendant pleaded a set-off of twelve dollars, but the justice refused to allow it.
    
      Gold, for the plaintiff in error.
    Kirkland, contra.
   Per Curiam.

The act directs, that if any defendant shall neglect or refuse to set off any account or demand he has against the plaintiff, such defendant shall be for ever thereafter precluded from having any action against , . the plaintiff to recover the same, or any part thereof, The true construction is, that the defendant must set off, the very first opportunity he has for that purpose. By omitting to set off his demand against the first action, the defendant lost his right of set-off, and his demand became ° for ever extinguished. The justice was, therefore, right -n refusing the set* off in the second suit.

Judgment affirmed. 
      
      
        Laws of N. Y. vol. 1. p. 494. § 9.
      
     