
    Douglas against Hoag.
    fore a^ustice^it Is a Soud Plea ln bal’> that the defendant had menceSn^T1" lion against the another jusdee ™ which the plaintiff ouste to have set-off Jlis demand-
    FROM the return made to the certiorari in this cause, it appeared, that Dousrlas, the defendant below, was sued , A. . . - . , , . , , by Hoag, m an action of assumpsit; and pleaded to the plaintiff’s declaration, that previous to the commencement of that action, he had brought an action against Hoag, before another justice of the peace, in a plea of trespass on the case, and that the summons had been duly served on „ , - , . . _ Hoag, prior to the commencement of this action. On a demurrer to the plea, the same was overruled by the justice, and a judgment rendered against Douglas. A motion was now made to reverse the judgment; and the case was submitted to the decision of the court, without any argument.
   Spencer, J.

The error assigned in this case, is, that the justice improperly overruled the plea of the pendency of another suit before another justice. The suit thus alleged to be pending, had been so far instituted, that a summons had been served. To any other court than that of a justice, it would be a frivolous objection, that one party had commenced a suit against the other, because, though the defendant, in the first suit, may set-off his demand, yet he cannot be obliged to do so, nor does he forfeit his debt, if he omit it. It is supposed, that the 9th section of the $25 act,' gives a right.to the party who has first sued out process, to coerce the defendant to submit to the tribunal which has been first resorted to, and there to Set-off his demand.

The section referred to, undoubtedly, requires the defendant .to set-off his demand at the trial, and if he neglect or refuse so to do, he is precluded from any action to recover the same, unless it exceeds ¡¡§25. But in this case, there had been no neglect or refusal to plead and set-off; it is true, the plaintiff in error had acquired a priority, but this, by no part of the act, precluded the defendant in error from taking out a process, returnable at a day prior to that on which the other was returnable. I admit that such practice may be attended with vexation, but to apply a corrective, is solely within the power of the legislature. I cannot say, that ah act which precludes a party’s demand, if not brought for-word at the trial, shall be construed to mean to preclude his suing for that demand, when there has been no trial, nor any neglect or refusal to off-set k. The judgment below ought to be affirmed.

Livingston, J.

I concur in the opinion just delivered. There is nothing in the act to deprive the defendant in error of a right, which he would have in every other court, to bring a cross-suit. Nor can I perceive why it should be so. It would give the debtor a choice of the tribunal; for if he-apprehended a suit on the part of his creditor, he might, take out process against him, before such justice as he deemed most friendly, and compel him to litigate there ; at any rate, if it should be otherwise, it will be easy for the legislature to say so. .

Thompson, J.

The ■ determination of the question arising in this case, will depend upon the construction to.be given to the 9th section of the act for the more speedy recovery of debts to the value of twenty-five dollars, which declares, “ That if the defendant, in any action to be brought “ by virtue of this act, hath any account or demand against 6t the plaintiff, he may plead and set-off the same against H the debt or demand of the plaintiff; and if he shall ne- “ gleet or refuse so to do, he shall, for ever thereafter, b.e 6i precluded from having any action to recover the same.” 1 , . . , - _ It has been settled m this court, m the case ox Larpenter and Butterfeld that with respect to suits prosecuted here, the issuing of the writ, as to every material purpose, shall he deemed the commencement of the suit; and by analogy, . . . .' , the issuing oí the summons or warrant m a justice's court, must be the commencement of the suit there. The obligation imposed on a defendant to set-off his demand, must, I think, attach on the commencement of the suit against him, and oblige him to set-off, in that action, any account or demand existing at that time. The words of the statute will warrant this construction : they are, “ if the defendant, in any action to be brought, hath any account or demand/6 &c. The question naturally arises, hath when ? The answer is, hath at the time the suit is brought or commenced against him. If the defendant’s account or demand arose after the commencement of the suit against him, he would not be obliged to, neither could he, set it off, if objected to, according to the decision in the case of Carpenter and Butterfield.— If the defendant’s obligation to set-off his account or demand attached on the commencement of the suit against him, he certainly would have no right afterwards to commence a suit, and thereby make himself plaintiff, instead of ■defendant. The construction of the statute which I have adopted, appears to me not only necessarily to result from the phraseology used, but to be the most conducive to the end of justice, and best calculated to prevent litigation.—To permit a defendant, against whom a suit is brought, immediately to commence a cross-action, and endeavour to have his cause brought to trial first, and to compel the plaintiff, in the first action, to set-off his demand in the second, would not only be throwing on him the costs of his own suit, which he had a legal right to commence, but would be opening a door to that kind of strife and vexatious practice, xvhich ought not to be countenanced. My opinion, therefore, is, that the plea interposed by the defendant in the court below, ought to have been received by the justice in bar of the plaintiff’s action, and that the judgment below must be reversed.

Kent, C. J. and Tompkins, J. declared themselves of the same opinion.

Judgment reversed. 
      
       Referred to in 1 Caines, 71.
     