
    GENERAL COURT,
    OCTOBER TERM, 1797.
    Wolgamot vs. Bruner.
    Appear from Washington county court. This is the same case reported ante, page 70. It was an action of replevin, brought by the present appellant, wherein the defendant, the present appellee, avowed a distress for 35l. current money, being for half a year’s rent in arrear, ending on the 1st of July, 1794, under and in virtue of an indenture of demise between them made, &c„. The plaintiff pleaded thereto three pleas — 1st. Nothing in arrear. 2d. Payments and 3d. Discount, or set off, as to part, and payment as to the residue, viz. ««as to 2oh 11 o, 9d. current money, part of the said S5h rent in the avowry alleged to be in airear, the defendant on the 1st of March, 1794, was, and still is, indebted to him the plaintiff, in the sum of '2Si. 11s. 9d. current money, for and on account of a note of hand for so much money due and owing from a certain S. fi. to the plaintiff, and by the plaintiff then and there assigned and delivered to the defendant at his special instance and request; which said sum of 251. 1 Is. 9d. he the plaintiff is willing and hereby offers to set off as far as the same will go in part discharge of the said sun of 3Si. by the defendant in his avowry above pretended to be in arrear and due from the plaiutiff; and as to 91. 8s. 3d. current money, the residue of the said 35'i.” he pleaded payment. Issue was joined to the first plea; general replication and issue joined to tiie second plea, and a general demurrer to the third plea, and joinder. Verdicts for the defendant, “and the jury find the value of the property distrained to amount to 32?. 10s. 0d. current money, and the rent arrear to be 33?. Os. lOd. current money.” Judgment “that the plaintiff take nothing by his writ aforesaid, but for his false claim be in mercy, &c. and that the defendant go thereof without day; and that he the defendant have a return of the goods and chattels aforesaid to the amount of 32?. Os. lOd. current money, detained to him irreplevisable forever,” and costs.
    Bill, OB EXCEBTIONS.
    The plaintiff, at the trial, to support the issues on his part as to the pleas in this case, of no rent in arrear, and of payment as to part and tender as to the residue, offered evidence to the jury to prove, that on the 1st of March, 2794, he tiie plaintiff, without any consideration therefor, assigned 1c> the defendant a note of hand for 21?. Os. 10;L which the defendant received, and agreed to take upon himself the recovery thereof, and to make himself answerable to the plaintiff for the amount thereof; which ho offered in evidence to the jury of a payment for the amount of the said note in part discharge of the rent avowed for in this- c ause. The «cunts court adjudged, and so directed the jury, that this was no evidence to them of any payment by the plaintiff to the defendant, in part discharge of the rent avowed for in ibis action. The plaintiff excepted, and appealed to this court
    
    
      Mason, for appellant.
    
      Shaaff, for appellee.
    Statutes cited — -7 Hen, 8. ch. 4. 21 Hen. 8, ch. 19. 5 7 Car. 2, ch. 7 and 19 Geo. 2, ch. 19, s. 23, also cited Lill. Ent. 348, and 542.
   The generad couiit, at the last ten:!, affirmed the judgment of the county court upon the demurrer, and, at pee present term- affirmed the judgment upon the rev.. diets, concurring with the comity court as to the opinion expressed in the Mil of exceptions«  