
    [Chambersrug,
    October, 1823.]
    MARSHALL against SHERIDAN, and Wife.
    IN ERROR.
    Under the plea of set -off, evidence ife admissible to show, that since suit brought the plaintiff acknowledged, that a settlement had taken place after the action waa instituted, andthatlie thereby became indebted to the defendant and gave him a note for the debt, and such note is also admissible.
    This was a writ of error to the Court of Common Pleas of Adams county.
    
      Assumpsit by Sheridan, and wife, plaintiffs below, against Marshall, the defendant below, to recover a balance due from the latter to the former. The defendant pleaded non assumpsit, and payment, with leave to set off, and on the trial offered to prove, that after the suit was instituted, Sheridan declared, that he had made a settlement with the defendant, after suit brought, of accounts which existed between them before suit brought, and that he acknowledged that he fell in debt to the defendant on the said settlement: and that he then gave a note to the defendant for that debt, which note, after being proved was also offered in evidence. The plaintiffs objected to this evidence, and the court rejected it, and sealed a bill of exceptions.
    The case was submitted to the court without argument,
    
      Stevens and Cassatt, for the plaintiff in error.
    
      M'Conaughy, contra.
   The opinion of the court was delivered by

Gibson, J.

If the note in question had been offered with a yiew to set off an independent debt acquired since the commencement of the action, there is no doubt that it could not be admitted. But it was offered with a quite different view. The action was brought for the balance of a settled account; and no one will pretend that the settlement was conclusive, or that the balance could not after-wards be varied by the act of the parties. At the trial, then, the defendant offered to prove that he and the plaintiff, had reviewed the settlement of the very accounts which gave rise to the supposed balance for which the suit is brought; that on the last settlement the balance fell the other way, and that the plaintiff gave his note for it: all which he offered to prove by the production of the note and by the declarations of the plaintiff himself. The offer then was not of evidence of a cross demand, but that the plaintiff had never had any demand at all. As to the declarations having been given after the commencement of the suit, it is certain that the declarations or the acts of a party in the cause are always evidence, without reference to the time when they were made or done: as in Morris’s Lessee v. Vanderen, 1 Dall. 65, Stubs v. Champlin, 4 Johns. 461, and 1 Phill. Ev. 79. The evidence therefore should have been admitted.

Judgment reversed, and a venire facias de novo awarded,  