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 *284act,' 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.