
    John Seward, jun. against Samuel F. Payne.
    ON CERTIORARI.
    Action for labour, &c. 
    
    evidence *ent overruled,
    
      
      
         See Erving vs. Ingram, 4 Zab. 520. Haslack vs. Mayers, 2 Dutch. 291. Beach vs. Mullin, 5 Vr. 343.
      
    
   OPINION of the Court.

Kirkpatrick, C. J.

The state of demand, in this case, consists of the copy of an account for work and labour done by day’s work, at 1 dollar per day, giving the dates, that is to say, giving every day on which the day’s work was done. On the trial, many objections were raised by the defendant, Payne, against the evidence offered by Seward. Among other things, Seward offered to prove, that Payne had been absent a number of times, a week at a time, while in his employ, and at the very time and for the very time charged in his account. To this evidence, Payne objected, alleging, if the justice’s return be well understood, that Seward had theretofore sued him and recovered damages against him, for leaving his work while in his employ; and the justice sustained the objection, and overruled the evidence.

But this was a mistake, for it is manifest, that although might have recovered damages against him, for absenting himself from his duty, and leaving his work undone, yet that did not authorize him, in the settlement of his accounts, to charge for the *very time in which he had been absent. The injury of which Seward complained, and for which he had recovered, if he had recovered at all, was for deserting his work and leaving it undone, and had nothing at all to do with the settlement of the account for the work actually done.

Let the judgment, therefore, be reversed.  