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The opinion of the Court was delivered by

Duncan J; —

The granting or refusal of amendments, is so much in the- discretion of Courts, as not to be the subject of revision by writ of error. But the Act of 1806, to regulate arbitrations and proceedings in Courts of Justice, having made it the duty of'Courts,' when any informality in a state*499ment or declaration, or entering a plea, will affect the merits of the case, to suffer the parties to alter or amend their statements, declarations, and pleas, on or before the trial of the cause, and if by such alteration and amendment, the adverse party is taken by surprise, the trial to postpone until the next Court, they are made subjects of writs of error. The plea of set-off or defalcation, is in the nature of an action. The defendant is not bound to set it off, and it would be most unjust to suffer him, under a defensive plea to the plaintiff’s demand, to lay by until the plaintiff has concluded his case, made out his right of action, and then turn round and say, “ I will now set up a cause of action against you ; a distinct and separate claim.” For this the plaintiff could never come prepared, and if the cause were continued on account of this surprise, he has again on the second trial to go over the same ground' — prove his cause of action. The costs would be no compensation, and this course would be very vexatious to the plaintiff. When the plea intended to be amended or altered, constitutes a defence against the plaintiff’s action, it is proper that such indulgence should be given on the trial, because the defendant would be bound for ever; but where his remedy by action remains open to him, there is no such necessity, nor does justice require it; and the permitting this plea on the trial, would be a source of infinite vexation and delay, and always put it in the power of a defendant, by holding back the most insignificant and groundless claim of set-off, to baffle the plaintiff, and deprive him of the verdict of a jury, to whom he had made out a very clear case. The Court very properly refused the amendment, and the judgment must be affirmed.

Judgment affirmed.

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