
    Benjamin South against William Grant.
    on certiorari.
    1. In an action upon the seventeenth section of the act concerning inns and taverns, (Bee Laws 284,) for taking more than tho legal rate for a breakfast, the state of demand should set out what the lawful rate was, and wliat the plaintiff' paid.
    2, If an action is brought against a person for money which he has once paid, and he neglects to set up such payment in his defence, he cannot maintain an action to recover the money back again.
    
      Gpant prosecuted South, (who was an innholder,) to recover the penalty given by the seventeenth section of the act concerning inns and taverns, (Rev. Lams 284.) for taking more than the legal rate for a breakfast, and filed the following state of demand : “ The plaintiff alleges, that on or about the 6th of August, he called at the house of the defendant, who keeps an inn and tavern in the township of Nottingham, and called for a breakfast, and paid the wife of the defendant for it; and after paying for said breakfast, he, the said defendant, filed an account, charging said plaintiff fifty cents for said breakfast, contrary to the seventeenth section o.f an act of the state of New Jersey concerning inns and taverns, passed the 24th day of February, 1791, with D. J., Esq., one of the justices of the peace of the county of Hunterdon, against the said plaintiff; and afterwards, to wit, on the 17th day of August, he, the said plaintiff, was arrested by a warrant **under the hand and seal of said justice, by I. C. one of the constables of the township of Trenton, and conveyed forthwith -to the office of the said justice, and paid for his breakfast a second time : therefore the plaintiff prays judgment for the sum of four dollars, with cost of suit.”
    Upon the trial of the cause below, the justice rendered judgment in favor of the plaintiff, Grant, for $4 debt, and $4.24 costs of suit.
    
      Wall, now moved to reverse this judgment — 1. Because the state of demand did not contain a legal cause of action. Considering this as an action brought upon the seventeenth section of the' act concerning inns and taverns, to recover a penalty for taking more than the legal rate for breakfast, the state of demand was defective. It did not aver what the rate fixed by law for a breakfast was, nordid it aver what sum the plain tiff paid for his breakfast, both of which should have been done.
    2. But .the plaintiff did not complain, in his state of demand, of being charged too much for.his breakfast, but of boing compelled to pay for it twice : this was not the injury the statute meant to redress. Besides, when he was sued for the breakfast, he should have set up the former payment as a defence, instead of going forward and paying it: and having neglected to do so he cannot get redress in this action.
   Per Curiam.

The reasons assigned for the reversal are sufficient.

Let the judgment be reversed.  