
    Dexter against Hazen and Arnold.
    NEW YORK,
    May, 1813.
    in an action tice^the 'tkfendant, if he mev trial and Íar?mmustin g!ve*notice of iL at the time sueJ01innSthe toolate, after «énerañssue6 to set up^that triai. *
    toid?*B.rethat he might go, pass, and re-pass, with his the”land'of terwardfshui up ^etfenge’ couidnot pas’s; te'VaSa h<rnere gratuitous license or pro» mise, on tion° could lie maintained by
    IN ERROR, on certiorari, from a justice’s court. H. S' A« d D. before the justice. The plaintiffs declared, that whereas on or before the 20th May last, the defendant had promised and engaged with the plaintiffs, that they might go, pass and repass with their teams, &c. over certain lands and premises of the defdant; that he, the defendant, afterwards ploughed up the land and shut up and fenced it, and stopped the plaintiffs from passing' over the land, contrary to his agreement, &c. The defendant pleaded non assumpsit, and a set-off for 2 days’ work. The the cause was adjourned, at his request, for 3 months, There was a trial by jury; and the defendant then offered in evidence a trial and judgment between the same parties before another justice, in an action brought by D. against H. S' A. This evidence was objected to by the plaintiffs’ counsel, on the ground _ •> " ’ ° that it bught to have been pleaded, or notice given of it, at the time issue was joined, and that it was now too late; and the justice overruled the plea.
    The agreement, as stated in the plaintiffs’ declaration, and the refusal of the defendant, were proved. The jury found a verdict for the plaintiffs.
   ePer Curiam.

The evidence of the former trial and judgment was properly rejected, as it had not been pleaded, nor notice given 0f at the time of joining issue. But the promise declared on was without consideration. It was a mere license gratuitously given, revocable at pleasure, it being still executory. (8 East, 308.) The judgment must be reversed.

Judgment reversed.  