
    M’Clain vs. Kincaid.
    In an action before a justice of the peace, upon a note, the defendant is entitled to set off an open account, though it be for more than fifty dollars.
    If an account, proved as a set off, be larger than the amount claimed, and the balance be within the jurisdiction of a justice of the peace, the defendant is entitled to a judgment for=such balance, under our acts of assembly, although the whole account may have exceeded fifty dollars.
    If a defendant, who is entitled to a set off, fail to bring it forward before a justice of the peace, he may still set it up in a court of record, upon an appeal, in the same manner that he could have done before the justice, in the first trial.
    The record in this cause shows, that a warrant issued from a justice of the peace for Claiborne county, summoning M’Clain to appear and answer Kincaid of a plea of debt, claimed by him, of fifty-nine dollars. The justice gave judgment for the plaintiff for fifty-nine dollars debt, and twenty dollars interest; from which judgment M’Clain appealed to the circuit court. On the trial in that court, the defendant, M’Clain, insisted upon having and being allowed a set off, and proved that on a settlement, from the hooks of the parties, the plaintiff, Kincaid, was' found to be indebted to said M’Clain, in the sum of between ninety and one hundred dollars. The settlement and balance were entered on the books, but not signed by either of the parties. The parties agreed that some notes they held on each other were not included, but were to be balanced against one another at some other time, and the difference paid to whom it might be found due. This evidence was not offered before the justice of the peace, and the circuit court rejected it as incompetent to establish a set off for a judgment in favour of the defendant, because the amount of the settled account was above the sum of fifty dollars. To this opinion of the court exception was taken. The plaintiff below had a judgment for eighty-one dollars and thirty-one cents. The defendant obtained a rule to show cause why a new trial should be granted him in this cause, which rule the court below discharged; from which judgment the defendant prosecuted an appeal, in the nature of a writ of error, to this court.
    P. Lea, for plaintiff in error.
    
      J. JL. M’Kinney, for defendant in error.
   Peck, J.

delivered the opinion of the court.

Did the court err in refusing the evidence offered to establish the set off? We are of opinion that in this there was error. By our act of 1756, ch. 4, demands may be set off, the one against the other, without regard to the nature of the security, so that the sum demanded and to be set off be certain. The sum to be set off cannot be material, so that the justice has jurisdiction of the balance which may be found due. The words of the act of 1815, ch. 53, are, “It shall be lawful for any justice tif the peace, when suit may be brought before him, and the defendant shall plead a set off, and on fair examination - , . • , n . . . . . , of their accounts, it shall appear to said justice, that there is a balance due in favour of defendant, then and in that case it shall he lawful for him to enter up judgment against said plaintiff for the sum that may appear due to said defendant.” The words of the act cover the case, and are certainly broad enough to let in the evidence and an examination of the accounts, so as to put a final end to the controversy touching the matters of account at least. This was the object of the act; and the plaintiff, who brings the warrant for a sum within the jurisdiction, and which, when met by a set off, leaves a sum of which the justice could take cognizance, is left by the act without any sufficient plea why judgment should not be rendered against himself. The acts are founded upon principles of equity; are wise in their provisions, and have been constantly enforced according to their spirit. The judgment was erroneous and must be reversed, and the cause remanded for another trial to be had therein, in accordance with this opinion.

Judgment reversed.  