
    
      S. Drake against E. Drake, an Infant, by G. Dubois, his guardian, or next friend.
    NEW YORK,
    October, 1814.
    tiJfhfeet^j that there was no such cause before him aa tied th/ccrwTntP’ on bto Erodings6 in ”a him,According to its true title, turn there was an assignment of errors and hela to" be Too totethe °cause loathe devThe'issuYof non-assumpsit, payment may beglVeninevi¡fence; fart if it is intended as matter of set-off it must notice8 therrof with the "eral issue,
    IN ERROR, on certiorari, from a justice’s court. The certiorari, in this case, stated the title of the cause to be Sha_ _ . „ - , - , draclc Drake ads. Gideon Dubois^ without naming him as guardian. The justice returned that there was no such cause before him as that mentioned in the certiorari ; but he returned the proceedings in a cause entitled as above ; and by which it appeared that C. Drake sued 5'. Drake, for use and occupation of the infant’s land. On the return of the summons, the defendant was called upon to disclose his defence, if he had any special , , , , , 7 matter. He declined to do so; and the return does not state that he pleaded at all; but it would seem that the justice and the parties considered the cause as at issue, upon the plea of non assumpsit. Upon the trial, the plaintiff proved his demand substantially; the defendant then offered to prove payment; this was objected to and overruled.
    A verdict was found for the plaintiff for twenty-five dollars, on which the justice gave judgment.
   Per Curiam.

The justice having made return of the cause that was in fact tried before him, and error having been assigned, and issue joined thereon, no objection can now be made to the cause being entitled wrong in the certiorari. The evidence of payment offered by the defendant, ought to have been received. It was an action of assumpsit, and a direct payment of the demand was admissible under the general issue. Had the payment set up been by matter of set-off, it should have been pleaded, or notice thereof given at the time of joining issue. But if the defence set up was admissible under the general issue, the defendant was not bound to disclose it until the trial. The judgment must be reversed.

Judgment reversed.  