
    Same Term.
    
      Johnson, Welles, and Selden, Justices.
    Stone vs. Miller.
    A plea in bar, containing matter in abatement, is bad on general demurrer.
    A plea alledging the pendency of a former suit, commenced by the defendant against the plaintiff, in a plea of trespass on the case, in which the present plaintiff had set off the same identical demand sued on, in the second suit, is demurrable.
    Error from Wayne county court. The cause was originally tried before a justice of the peace. Miller, the plaintiff before the justice, declared against Stone in assumpsit for work, labor and services performed by the plaintiff’s son, who was a minor at the time, and for goods sold, &c. and for money had and received, &c. The defendant pleaded 1st. the general issue, and 2d, the pendency of a former suit before another justice, commenced by Stone against Miller, in a plea of trespass on the case. That issue was joined in that suit, which issue was pending and undetermined at the time of putting in this plea ; averring that in that suit the plaintiff set off against the demand of the defendant the same identical cause of action set forth in this action; which action remained to be determined. The plaintiff demurred specially to the second plea, and the justice sustained the demurrer,
    In a supplemental return, the justice stated that he was unable to set forth all the reasons assigned by the plaintiff as causes of demurrer, but among them was the following: “ The plaintiff objected to the dilatory plea, saying that it was too late after the general issue, and I so understood the law, and sustained the plaintiff’s objection to such dilatory plea.” The justice rendered judgment for the plaintiff for $25, which the county court affirmed. This writ of error was brought to reverse the judgment of the county court and that of the justice.
    
      T. R. Strong, for the plaintiff in error.
    
      John W. Cary, for the defendant in error.
   By the Court, Welles, J,

The judgment of the county court should be affirmed.

1st. The plea upon which the question arises was of matter in abatement, and was bad on general demurrer, as a plea in bar. It was nevertheless pleaded in bar.

2d. The first suit was an action of trespass on the case. This does not necessarily mean an action in which a set-off was admissible. It may have been trover or for fraud, or any other action on the case not including an action on a contract, Indeed an action on the case is not understood to include assumpsit, debt, or covenant, which are about the only actions sounding in contract, triable before a justice. If it was not founded upon a contract, a set-off would be inadmissible if objected to.

Judgment affirmed.  