
    [393] POTTER against CARMAN.
    ON CERTIORARI.
    Moving to nonsuit on state of demand, does not preclude a motion to adjourn in justice’s court. "
    The first reason assigned for the reversal of the judgment below was, that the justice granted an adjournment and trial by jury after he had proceeded to inquire into the. .merits of the cause. The fact, as it appeared on the justice’s docket, was, that on the return of process and filing the state of demand, the defendant moved the justice to nonsuit the plaintiff, on a ground which the defendant had stated in his plea, which the justice had refused; on which the justice, on the motion of the plaintiff, adjourned the cause, and awarded a venire for a jury.
   By the Court.

This was not proceeding to inquire into the merits of the cause. The justice was very correct in this respect.

[*] It was next contended, that the justice had improperly overruled the testimony of the defendant below, who was the plaintiff in this court. It appeared by the record of the justice, that this testimony was offered to prove a set-off, and was rejected on the ground that the defendant had not filed a plea of payment.

Soudder, attorney for plaintiff.

By the Court.

This was correct.

It was contended, that the demand below was for a tavern debt; but it appeared that the tavern act was pleaded, and that a jury had passed on the account.

By the Court.

This was a question of fact, and was proper to be tried by a jury.

Judgment affirmed. 
      
       The plea of payment is now rendered unnecessary, by a supplement to the justice’s act, passed 29th Nov., 1809.
     