
    Moore against Davis.
    NEW-YORK,
    May, 1814.
    justice’s crart" aHowaMe“an°d Mt^afterlards Sring an action lemanda¡ainst íhe fovma-’aL tion is^m bar (Sess. 36.c. 53. $n an action of PwafilTN» Q
    IN ERROR, on certiorari, from a justice’s court. Davis brought an action of assumpsit, before the justice, against Moore, f°r work and labour, &c. Plea, non assumpsit, and a former stat anc* recovery by the defendant against the plaintiff, in which the plaintiff neglected to set off his demand. The plaintiff having proved his cause of action, the defendant produced a certificate of his former' suit and judgment, and contended that the plaintiff ought to have set off his demand in that action. The plaintiff offered to prove that the action against him by the defendant was in trover. This was objected to, but the objection was overruled by the justice. It appeared that the action was trover for a horse, in which the plaintiff did not set off his demand. But the justice decided that the former suit was no bar, as the plaintiff was not bound to set off his demand in that suit: and he gave judgment for the plaintiff for 25 dollars.
   Per Curiam.

The former suit by the defendant, in which it was alleged that the plaintiff ought to have set off his demand was an action of trover. It was an action founded on a tort, and, according to the construction given to the act, (sess. 36. c. 53. s. 6. 1 N. R. L. 381.) in the cases of Allen v. Horton, (1 Johns. Rep. 23.) and Dean and Chamberlain v. Allen, (8 Johns. Rep. 390.) no set-off was admissible. The. justice was, therefore, correct in deciding that the former suit and trial was no bar to the present suit. The judgment must be affirmed.

Judgment affirmed.  