Dean & Chamberlain v. Allen — 8 Johns. 390

Majority

p. 390

Dean and Chamberlain against Allen.

Headnote

Iu an action for deceit, before a justice, a plea of a former suit by tlie defendant a- ' gainst the plaintiff on a contract, in which. the present plaintiff neglected to set off his demand, is no bar.

IN error, on certiorari, from a justice’s court.

The plaintiffs in error brought an action of deceit• against Allen, for delivering whiskey, by false measure, and for fraudulently, in their absence, using their distillery and wood.

The defendant pleaded a former suit and recovery, in bar, commenced by him against the plaintiffs, on a con- • tract, in which suit the plaintiffs ought to have set off their demand. There was a demurrer to ,the plea, on which the justice gave judgment for the defendant.

This action was for a tort, and not on any contract expressed or implied. Deceit was the gist of the action, and it could not have been joined with a count in assumpsit. ( 1 Johns. Rep. 503 .) The former judgment was no bar, because this cause of action could not have been set off in the former suit, and the judgment below must be reversed.

Judgment reversed.