Gilmore v. Reed

delivered the opinion of the court, January 4th 1875.

This ease presents the question whether the commencement of a suit stops the running of the Statute of Limitations against a claim, which the defendant interposes as a sét-off, or whether it is not stopped until the set-off is pleaded.

The first section of the Act of 1705, Purd. Dig. 488, pl. 1, makes it lawful for a defendant to give in evidence, “ any bond, bill, receipt, account or bargain,” which he held against the plaintiff at the commencement of the suit. He is thus permitted, but not required, to introduce his set-off in a suit brought in a court of record. An omission to do so, is no bar to his claim in any other action. Even if it be pleaded, yet it is in the nature of a cross-action, and the defendant may withdraw it from the consideration of the jury : Muirhead v. Kirkpatrick, 5 W. & S. 506; Idem, 2 Barr 425. Nor does the pendency of a suit brought for its recovery prevent its being set off in another action: Filbert v. Hawk, 8 Watts 443; Stroh v. Ulirich, 1 W. & S. 57.

By pleading a set-off, a defendant cannot prevent the plaintiff from suffering a nonsuit, even after issue joined in the plea: McCredy v. Fey, 7 Watts 496.

The Statute of Defalcation does not per se apply the demand of one party to that of the other, so as to produce either payment* satisfaction or extinguishment of either: Hinkley v. Walters, 8 Watts 260 ; Idem, 9 Id. 179.

If the defendant plead set-off, the plaintiff may reply the the Statute of Limitations to such demand : Id. 8 Watts 264. In the case now under consideration, the defendant in error did so reply. If the defendant goes to trial without demanding a replication to his plea of set-off, the defence to the set-off is unrestricted, and the plaintiff may avail himself of the Statute of Limitations or any other defence: Coulter v. Repplier, 3 Harris 208.

It is optional with a defendant to interpose his set-off. If he does so, it is in the nature of a cross-action. If he commences a separate action for the recovery of his claim, the running of the statute will stop at that time.

If, on the other hand, he elects( to use his claim as a set-off, we think the time when he so elects by his plea or by notice to the plaintiff, is logically and justly the time when the running of the Statutes of Limitations is stopped.

If a defendant having a claim against a plaintiff, neglects to bring an action for it, as he may, and thereby suffers it to be barred by the Statute of Limitations, his loss is caused by his own folly or negligence.

*465It follows then that the learned judge correctly held the items pleaded as a set-off by the plaintiffs in error, which were due more than six years before he entered his plea of set-off, were barred by the statute.

Judgment affirmed.