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THE need of a work in relation to the matters treated in the following pages had been a long time felt by the author, before he was induced, at the suggestion of an eminent judge of this State, to undertake its preparation. *
The origin and rapid extension, within a comparatively recent period, of the law of set-off, and the further innovation upon common law rules by the introduction in several of the States of the modern doctrine of counterclaim, have led to a multitude of decisions in England and the United States, by which the principles governing these subjects have been molded into a connected and well established system of practice. But the frequency with which many of the ordinary topics connected therewith are discussed in the courts, seems to show that there is less familiarity, on the part of the profession generally, with this than perhaps with any other branch of the law. It is supposed that this has been mainly owing to the fact that the decisions are scattered through so many books of reports as not to be easily accessible; and it is sought in this work, as
The Treatise of Mr. Barbour on Set-Off, was published twenty-eight years ago.
far as possible, to remedy the inconvenience thus felt, by furnishing, in support of the rules and principles which belong to the subject, a brief but comprehensive abstract of every case cited. The accomplishment of the task has taken a long time, and been attended with very considerable labor; for it has involved the necessity of studying critically each one of the something like eighteen hundred cases referred to. The notes, which are copious, have been prepared with care, and it is hoped that they may be found useful. Should the utility of the work prove at all commensurate with the toil bestowed upon it, the author will feel amply rewarded.
BINGHAMTON, N. Y., September, 1869.
12. Where there are distinct covenants in an agreement under seal