
    Moss and Jackson vs. Collins.
    2. A statement in a petition for writs of certiorari and supercedeas, that the plaintiffs were absent from the place of trial, and did not know within the time allowed bylaw for appealing*, that a set off had been pleaded and sustained, is insufficient excuse for not having* appealed.
    2. The fact, that the set off had been pleaded to an account which had been verified by the oath of plaintiffs, and authenticated according* to the provisions of the act of J 83 9# ch. 25, sec. 1, and sent to another county, presents no reason for taking this case out of the above rule.
    Moss & Jackson stated in a petition for a writ of certiorari, that they, merchants and partners in the county of McMinn, sold and delivered coffee to Collins, a resident of Rhea county, of the'value of $32. That said sum being due, they verified the said account by affidavit and had it authenticated according to the act of 1819, ch. 25, sec. 1, and sent it to their agent Bean, a constable in the county of Rhea for suit. That Bean instituted suit by warrant against Collins before Waterhouse, a justice of the peace for Rhea county; that on the 10th day of April, 1841, the suit was tried; that defendant brought forward as a set off against plaintiffs an account for fifty gallons of whisky sold and delivered to plaintiffs, at fifty cents per gallon; that this account was a false account, but that it was allowed by the justice, and a judgment rendered in favor of the plaintiffs for the sum of $4 10 only; that the constable di d not appeal for them, and they were not informed of the allowance of this false and fraudulent account as a set off until the two days allowed by law for appealing had expired.
    Upon these statements, Keith, judge of the third circuit, ordered the issuance of the writ petitioned for, and the case was accordingly certified to the circuit court for Rhea county.
    At the July term, 1841, a motion was made by the counsel of defendant to dismiss the petition. This motion prevailed, and the petition was dismissed. The plaintiff appealed.
    
      Jarnagin, for petitioners.
    
      VanDyTce, for defendant.
   Reese, J.

delivered the opinion of the court.

Moss and Jackson verified their account by oath, and annexing the authentications required by the act of assembly, transmitted it to another county; suit was brought thereon before a justice, and the defendant, on trial, claimed and obtained a set off, and judgment was given against them. They presented a petition for a certiorari, showing that the set off was improperly allowed, and stating their absence from the place of trial, and want of knowledge that the set off had been allowed, as the reasons for not appealing. In the circuit court the writ was dismissed. In the case of Porter vs. Wheaton, 5 Yerg. 108, it was held that the statement of a plaintiff, that he had no notice of the time and place of trial, and that he did not know of the cross claim set up by the defendant, was insufficient as a reason for not appealing. These and like cases determined by this court must govern the present., It is said, a different rule ought to prevail in cases of accounts verified according to act of assembly. We are at a loss to see wherefore; the account thus verified, like a bill single, will be taken as true, unless denied on oath by the other party. But they may each be denied on oath by the defendant, and if that be not done, they are each subject to be resisted by various defences such as payment, set off, &c. The character of the testimony, as being more or less conclusive, upon -which the plaintiff relies for recovery, cannot change the legal consequences of his neglect to attend to his suit by himself or his agent. The writ was properly dismissed in tips case, and we affirm the judgment.  