M'Kerras v. Gardner

Headnote

Inhere'the de< greta* tor^4* move his goods from a state*m May* 1803, bufc sof^ih^conse? q'mnce of plaintiff was> ^dto°pay da" to the ¿person to wholn he had sold the store ; it was held, that the cause of action accrued when the defendant neglected to remove the goods, in Í803, and not when the plaintiff had to pay damages in 1806, and that, consequently, the plaintiff, having been before sued by the defendant in 1806. before a justice, qn a note, was bound to set off this demand, for damages' on thj, agreement.

ON certiorari. The plaintiff below declared against the defendant, for damages, sustained in July, 1806, in consequence of the defendant’s not removing his goods * i i • «JT from a store, occupied by hM under the plaintiff, and which removal was, by a contract between the parties, to have been made in May, 1803. The deponent pleaded a suit, and a recovery by him against the plaintiff, before another justice, on a promissory note, in April, 1806, in which suit the plaintiff’s demand ought to have , rr J se6ott* ' i

On the trial, the plaintiff below proved, that he had sold' the store, occupied by the defendant, to one Hammondf who was to have had possession, on the 1st of April, 1803, and that the defendant would not give up the possession till the 27th day of June following ; that after the month of April, 1806, Hammond demanded damages of the plaintiff below, for not delivering up the store, upon which he and Hammond settled, the plaintiff paying him twelve dollars and fifty cents.

The demand of the plaintiff, below, ought to have been set off in the suit brought against him by the defendant on the note. The cause of action arose when the contract to remove the goods, or deliver up the store, was violated, which was in May, 1803, and did not accrue upon the settlement of the damages between the plaintiff below, and Hammondy «after April, 1806.

The plaintiff, below, had not suffered, any loss, till the damages were demanded by Hammond,'p and paid to him. The cause of action may, therefore, be said to have accrued at the time,, and consequently could not have been set off in the suit on the note.