Majority
p. 210Dygert against Coppernoll.
Headnote
Where,o£<jd formerea judgpiSntiG;prblfn| tof“ vent’4t obtf ‘{¡y Mentis5?ei a?aem.tnesseaand minutes of the' wtnehCIthere is an ambiguity as to the form of the action, the evidence of the justice is mad' miseibietoshow contractfntapfnh^possesston bitten S?ai cy|dence'Cof onot admissible In á justice's tíonlomdedon tort.
IN ERROR, on certiorari to a justice^ court,
The defendant in error brought ah action of assumpsit in the' conT^ below, against the plaintiff in error, in which the latter pleaded a former trial between the same parties, in which the defendant in error, the .plaintiff below, ought to have, set off the present demand. -The justice, before whom the former action was tried, appeared ás a witness, and produced his rninutes % -from which it appeared, that a judgment had. béen rendered in a suit of Dygert v. Coppernoll, stated thereon to be á plea of trespass On the case, but without specifying whether it were founded on tort or contract; he also stated that the original ' claration was m writing which he had left át home 5 arid, on its being proposed by the defendant below, that he should explain, from memory, what was the ground'of that action, in order to ascertain whether the set-off might .legally , have beef? made,tbe evidence, was overruled, and judgment given for the plain» tiff below.
M‘Koun, for the plaintiff in error»
Dodge, contra..
No set-off can be allowed,^except, it.be against a claim founded in con tract,, express .or implied. The, minutes.^ of the ‘ former judgment are equivocal and uncertain • as to the cause of action. , Trespass on the case may be for tort or contract; and, to explain that ambiguity, the written declaration. which the justice had left at home was the best evidence ; and, therefore,., the parol evidence to that point was properly excluded.,
The judgment ought to be affirmed.--