
    Waring against Lockwood.
    ALBANY,
    Jan. 1813.
    in an action before a justice’s court, the defendant, if he has any account or demand against the plaintiff, must plead it, or give notice of the set-off, at the time of joining issue; and if he neglects to do so, he cannot, afterwards, make the set. o#¡at the trial»
    IN ERROR, on certiorari, from a justice’s court. Waring brought an action of assumpsit against Lockwood, before the justice, and declared on a note, and also on an account for services, &c. The defendant pleaded the general issue, and said he was ready for trial; but the cause was adjourned at the request of the plaintiff At the adjourned day, the defendant demanded a trial by jury- At the trial, he produced a receipt or written settlement of the account of the plaintiff up to the time of the defendant’s account, which he exhibited and offered as a set-off but which was objected to, as it was not pleaded, nor any notice of it given; at the time issue was joined~ The return also stated that by the credit of the plaintiff's book, there appeared to be a balance due to the defendant. The jury found a verdict for the defendant, for 1 dollar and 92 cents, on which the justice gave judgment.
   Per Curiam.

The statute says, that if the defendant has any account or demand against the plaintiff he may “plead and set off the same.” In this case he pleaded the general issue, by denying the plaintiff’s demand, and neither pleaded nor gave notice that he had any counter demand of his own, to set off; and yet, after-wards, upon the trial, he produced such an account, and the jury passed upon it and found,a balance in his favour. 'The defendant ought either to plead the set-off, or give notice of it at the joining of issue, and not keep it in reserve and secrecy until the trial has commenced; for this is calculated to surprise the plaintiff, and prevent him from being prepared to controvert the account or demand so offered as a set-off Such conduct is calculated to work great injustice, and is contrary to the meaning of the act. The account offered as a set-off ought, therefore, to have been rejected, and the judgment for that cause ought to be reversed.

Judgment reversed.  