
    Bissell against Marshall.
    NEW-YORK,
    May, 1810.
    In an action before a justice of the peace, the party in whose favour the judgment has been rendered, may bring a certiorariy if the justice, by erroneously rejecting evidence, has diminSshedthe amount which the party would have been otherwise entitled to recover.
    IN error, on certiorari. Marshall sued Bissell, and declared for goods sold, &c. to 3 dollars. The defendants pleaded non assumpsit, with notice of set-off of work and labour, goods sold, and damages for not delivering clover seed according to agreement. The defendants also pleaded, that a judgment had been rendered in favour of Bissell, against Marshall, on a note, the 12th July, 1808, for 9l. 9s. and that Marshall had neglected to set off the present demand, and so was barred. The justice decided, that the former action being on a note, and the present suit upon an account, the former recovery was no bar to the action. There was a trial by jury, and a verdict for the defendants for 8 dollars.
    The error assigned was, that the justice, in overruling the plea of a former trial, and allowing the plaintiff’s demand had diminished the verdict for the defendant be? low, to the amount of that demand.
    
      The case was submitted to ment. the court, without argu-
   Per Curiam.

The decision of the justice, in overriding the plea of the former suit and recovery between the same parties,' and in which the plaintiff below was sued, and neglected to set off the demand for which he then sued, was clearly erroneous. And though the verdict and judgment below were in favour of the now plaintiff in error, he may bring error to reverse it; (3 Burr. 1772.) and it is to be presumed that he has suffered a loss, by the decision of the justice, to the amount of the demand for which he was sued, as it went to reduce the balance due to him. The judgment below must be reversed.

Judgment reversed.  