
    Robertson v. Depriest.
    Decided, January, 1820.
    i. Assumpsit —Evidence—Witness Examined in Prior Suit between Same Parties — Effect.—In Assumpsit the testimony of witnesses, offered, to prove the items in the plaintiff's account, ought not to he excluded from the Jury upon the ground that, in an action of debt between the same parties, (the record of which action is not exhibited,) determined during the pendency of the action of as-sumpsit, one of those witnesses was examined touching the same items claimed by the plaintiff, to repel or set-off the credits then claimed by the defendant.
    This was an action of assumpsit, in the County Court of Nottoway, for sundries sold and delivered. At the trial of the cause, on the plea of non assumpsit, the plaintiff John A. Robertson introduced several witnesses to prove the various items in his account. The defendant’s counsel objected to the introduction of that evidence; on the ground, that, in an action of debt some time before determined between the same parties, one of those witnesses had been examined touching the same items claimed by the plaintiff, to repel or set off the credits then claimed by the defendants, although this suit was at this time pending. And this objection was sustained by the Court, and the testimony accordingly excluded ; to which opinion the plaintiff filed a Bill of exceptions. Verdict and judgment for the defendant.
    The Superior Court of law granted a su-persedeas to this judgment, but afterwards affirmed it; whereupon, the plaintiff appealed.
    The following was the opinion of this Court.
    The Court is of opinion t.hat the judgment of the County Court is erroneous in this, that it was irregular to reject the witnesses offered on the part of the appellant, on the ground that the items which they were brought to support, had been decided on in a former suit between the same parties, the record in which suit was no how exhibited to the Court. *Both judgments are therefore, reversed with costs, and the cause is remanded for a new trial to be had between the parties.
    
      
       See monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
     