6 Cow. 613 | N.Y. Sup. Ct. | 1827
Curia, per
It seems to me this is clearly a case of unliquidated damages. The question is, not simply, what is the value of boarding and lodging by the week or otherwise ? or how much should be charged by a physician for defined and specific services ? or what is a reasonable sum for a certain quantity of medicine ? but it involves this inquiry : what shall be considered as
But it is contended that the statute, (1 R. L. 515, s. 1,) has extended the doctrine of set off, by the insertion of the words, “ or have demands arising on contract or credits against each other.” 1 think it is evident the legislature did not intend to change the law; so as to give a party the benefit of uncertain damages by way of set off. If they did, why does the same section provide, that if the suit be brought on a bond or other contract, for the recovery of a penalty for the non-payment of money only, and such bond be given in evidence by the plaintiff or defendant, the sum bona fide due, and not the penalty, shall be deemed to be the debt ? Such a bond or contract, unless for the payment
The question of set off has frequently arisen since the passing of the statute of 1813; and I apprehend that, in no case, have the courts of law or equity given that statute a construction variant from what obtained previous to the last revision of the laws. In the case of Duncan v. Lyon, (3 John. Ch. Rep. 351,) chancellor Kent examined the question elaborately; and decided that a breach assigning the non-performance of a covenant, in not furnishing timber and provisions, was a demand atlaw in the nature of redress for a wrong or injury committed, and not for a debt due ; that it rested entirely in uncertain and unliquidated damages. This case was several years after the act of 1813 ; and is an authority to show that nb alteration had been made in the doctrine of set off by that act. The decision of the judge at the circuit on this point was correct; but he erred in allowing the balance claimed by the defendants, to be certified in their favor. In this very case, (4 Cowen, 57,) we decided that the certificate was a nullity,
As to the hardship of this particular case, the answer is, we do not possess the power of applying the remedy. The statute is remedial; and embraces certain cases only. Un® til the legislature interfere, and alter the law, a defence like that relied on by the defendants, cannot be available by way of set off. The motion for a new trial must be denied.
New trial denied,