Young v. Harry, 4 Blackf. 167

Dewey, J. This was an action of debt by the assignee of a promissory note against the maker. The defendant below pleaded in bar, that before he had notice of the assignment of the note, and at the time of pleading, the assignor was indebted to him in the sum of 500 dollars, (an amount gi’eater than that of the note,) for goods, wares, and merchandise sold and delivered, and for various other matters set forth in the plea; which sum so due and owing from the assignor to the defendant, he had been and was then ready and willing to set off against the claim of the plaintiff below.

To this plea the plaintiff demurred, assigning for cause of demurrer, that the plea is “ anomalous, unusual, and unknown to the law of the land.” Joinder in demurrer, and judgment for the plaintiff. H. Brown and J. L. Ketcham, for the appellant. J. Morrison, for the appellee. The question presented by this record has long since ceased to be debatable. This Court has repeatedly decided that under our practice act, a plea in nature of set-off must, in form, be a plea of payment, concluding with the special matter of set-off. The idea in question lacks the necessary form, and is bad. 1 Blackf.

Rep. 188—Ib. 367, Per Curiam. The judgment is affirmed with 5 per cent. damages and costs. To be certified, &c.