
    Vance and Dill vs. Royster.
    
      June 13th.
    
    See cafe*
   OPINION of the Court, by

Ch. J. Bibb.

— In covenant for the payment of forty-five dollars thirty-seven and a half cents, in cattle or whiskey, in the fall 1806, the defendant pleaded payment, and gaVe notice of setoff of 49 barrels at one dollar each. On the trial the defendant gave evidence “ that the plaintiffs received a quan-titv of barrels from him the said defendant some time in March 1806” ; which was previous to the date of the covenant: the jury found for the defendant; the plaintiffs moved for a new trial, upon which the court were divided and so the motion was lost; to which the plaintiff excepted.

The plaintiff assigns for error, that the plea was informal and immaterial ; and that the court erred in overruling the motion for a new trial.

The issue is not very formal, but it is substantially a good answer to the covenant as stated in the declaration, especially after verdict. But on the other point, this court is of opinion that a new trial should have been awarded. The number oí the barrels was uncertain, the price not ascertained, and the evidence on the part of the defendant vague and uncertain that it could not be embraced by the notice of setoff, and was not sufficient in any point of view to warrant the finding of the jury. It is evident^ that the delivery of barrels could not discharge a covenant for cattle or whiskey, and not entered into at the time of such delivery.

Judgment reversed.  