
    Daniel Cummings, Plaintiff in Error, versus William H. Pruden.
    Where the plaintiff, in an action before a justice of the peace, had leave to discontinue, the defendant could hot have judgment for his account filed by way of set-off.
    This writ of error was brought to procure the reversal of a judgment rendered by a justice of the peace for this county, wherein Cummings was plaintiff and Pruden was defendant.
    The action was upon a promissory note for 10 dollars made by ihe defendant, and payable on demand to the plaintiff. It appeared, from the record, that the plaintiff, after entering his action, had leave to discontinue; and the defendant, having more than four days previous to the return of the writ filed an account before the justice, as a set-off to the plaintiff’s demand, prayed that the same might be allowed; and the justice entered judgment for him, for the sum of 20 dollars damage and 66 cents costs.
    
      Greenleaf for the plaintiff in error.
    
      Frost, for the defendant in error,
    relied on the provision of the statute of 1784, c. 28, § 12, that, where an account is duly filed, “ If, upon the trial, it shall appear that there is a balance due to the defendant, he shall recover the same, in the same, manner as if he had brought his action therefor.” And he argued that, although the plaintiff might have no cause of action, the defendant was, nevertheless, entitled to recover his just demand, having taken the course directed by law.
   Sed per Curiam.

Let the judgment be reversed as to the damages awarded to the defendant, and affirmed as to the costs.  