Majority
p. 22Bull against Hopkins. NEW-YORK, Nov. 1810.
Headnote
In an action before a justice, a plea of a former action and trial between thesame parties, in which the present plaintiff set off his demand,is not good, if the XTdemand was founded,was not then actually set-off,3for that season, rejected. In an action before a justice, a plea of a formerIN error, on certiorari, fr.om a justice’s court.
Hopkins sued Bull before the justice, and declared f°r money paid and laid out, for the use of defendant. The defendant pleaded non assumpsit, and that the same 1 1 ’ demand had been pleaded by way of set-off, to a suit . , brought by Bull against Hopkins. On the trial, the demand was proved by the admission of the defendant; an¿ that the set-off had been exhibited at the former triaI> and rejected by the jury. The justice, by a supplementary return, made under a rule of court, stated# that- the payment of money by Hopkins for Bull, was proved; that what Hopkins pleaded as a set-off at the former trial, was for a demand not then due, as the money was not paid until after such trial 5 and it was proved, that the set-off was -disallowed for that reason.
The justice, in his supplementary return, refers to, and adopts, as correct and true, the facts stated in the affidavit of Hopkins; and from those-facts it appears, that the plaintiff’s demand below accrued subsequent to the former trial; and arose from the payment of money for the defendant’s use, which could not have been legally set off at the former trial, and so the former trial was no bar.
Judgment affirmed.