
    Asahel D. Stevens vs. Luke B. Miller.
    Damagés by the plaintiff to the defendant’s property while in bis employment cannot be set up in defence of an action on a promissory note given for such services, if a verdict for the plaintiff has been returned in an action brought against him by the defendant to recover such damages.
    Action of contract on a promissory note. Answer, that the consideration of the note was services performed by th? plaintiff for the defendant; that in the performance of such services the plaintiff was furnished by the defendant with a wagon and horses, and so over drove and neglected the horses that they became sick and of little value ; and the defendant claimed to recover the damages so sustained. Replication, that since this action was brought, the defendant commenced an action against the plaintiff for substantially the same matters as those set forth in the answer in this case, and that a trial of said action upon all the issues raised by the pleadings resulted in a verdict for the plaintiff in this action ; and therefore the plaintiff should not be held further to try the matters alleged in this answer. The defendant demurred to the replication. But the court of common pleas, Bishop, J. presiding, overruled the demurrer, a verdict was returned for the plaintiff, and the defendant alleged exceptions.
    
      I. Sumner & J. E. Field, for the defendant.
    
      J. D. Colt, for the plaintiff.
   Hoar, J.

The demurrer was rightly overruled. 1. The defendant having elected to avail himself of his claim .against the plaintiff for damages by means of a separate action, and having brought his action, and prosecuted it till a verdict was rendered, could not also avail himself of the same claim in mitigation of damages in this suit.

2. The defendant’s answer could not avail him. The note was given in settlement of the plaintiff’s wages, after the facts on which the defendant relied had occurred, and were known to the parties. There can be no right in such a case to resist the payment of the note by setting up a tort committed by the plaintiff while in the defendant’s service.

Exceptions overruled.  