
    MILLER v. PIERCE.
    East'n. District.
    Jan'y. 1825
    Although the judge a quo gave an erroneous our charge to the jury, the case will not be remanded, if justice has been done.
    Appeal from the court of the first district.
   Porter J.

delivered the opinion of the court. This action was brought to recover a balance, which it is alleged the defendant, owes the plaintiff, in consequence of various errors and omissions which occurred in the settlement of their partnership affairs.

The defendant pleaded the general issue; after the cause had stood on this issue for some time and a good deal of evidence had been taken. The plaintiff obtained leave to file a supplemental petition, in which instead of averring the defendant owed him, he declares that if the latter is entitled to recover any thing, the same is compensated and paid to the amount of $1126 42, being the amount of a judgment rendered in favor of the plaintiff in the same court where this case was pending.

The cause was submitted to a jury, who found for the defendant. The propriety and correctness of the verdict on the evidence given has not been disputed in this court, but the plaintiff complains of the judge's charge to the jury, in which he told them, that the judgment in the case of Pierce vs. Miller, which was in favor of Miller could not be allowed in this action.

Carlcton & Lockett for the plaintiff, Hennen for the defendant.

The defendant contends, that admitting the charge to be erroneous, still this court ought not to remand the cause for a new trial. That by the pleadings this judgment was pleaded by the plaintiff in compensation of the defendant’s claim, and to prevent his getting judgement against the petitioner. That had the record been admitted to go to the jury, it could not have varied the result, as it was introduced for no other object but compensation, and that was obtained by other evidence, as the verdict establishes.

The court assents to this reasoning. The supplemental petition states expressly that the judgment is offered by way of compensation to the defendant’s claim to recover from the plaintiff. The jury have given every thing which the party could have obtained under the pleadings. It would be consequently doing a vain thing to remand the case for further examination.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  