
    Wilson against Larmouth.
    ALBANY,
    August, 1808.
    In aii action of assumpsit before a justice, the defendant pleaded non assumpsit, and set off five dollars damages for a trespass ; the plaintiff did not object to the set-offj and the jury found a verdict for the defendant for 15 dollars. It was held, that as the plaintiff did not at the time object to the set-off, he could not afterwards allege it as error ; and that thoughitwould be error inform if a jury were to find more damages for a plaintiff than, he had alleged in his declaration ; yet the jury being the judges of the damages of the trespass set off by the defendant, the verdict will not be set aside because they found more damages than the defendant alleged, it being no error in substance.
    ON certiorari. The plaintiff below declared in an action' of assumpsit for 25 dollars, and the defendant pleaded non assumpsit, and a set-off of five dollars damages, done by the plaintiff’s cattle, on the land of the defendant ; the plaintiff did not object to the set-off, and the cause was tried by a jury, who found a verdict for the defendant for 15 dollars damages.
    Crary, for the plaintiff in error,
    objected, that the set-off ought not to- have been allowed ; and that, at all events, the defendant was not entitled to recover more than the sum of five dollars.
    Skinner, contra.
   Per Curiam.

As the plaintiff made no objection to the set-off at the time of the trial, but suffered it to go to the jury, it is now too late to make the objection here. In the case of a plaintiff, it would be error if the verdict should be for more damages than are laid in the declaration, but it is error in form, not in substance. The jury were the proper judges of the quantum of damages ; and it would be against right and justice to set aside this judgment, on a point of form.

Judgment affirmed.  