
    Allen against Horton.
    NEW-YORK.
    Nov. 1810.
    Where A. sued B. in an action of i~ree~aea, and also in aaewn~`it, and the process in both suite was returnabI~, at the same time and place, and the action of trea.. ~asa was first called on, and issue joined, and t~e cause 5d~ journed to a fu. ture day; and immediately after, the ant Oft of asaunspeit was called on, and the defendant pleaded matter by way of ae~.oJ which was rejected by, the justice, on the ground, that it. ought to have been pleaded in the first suit; but itwas afterwards allowed to be set offaL the tri~ at of the action of trespass. It was held, that the set-off ought. to have been alin-wed in the action of asaump~ nt, and the judgment below was reversed.
    IN error, on certiorari, from a justice's court.
    Horton sued Allen, before the justice, in an action of 4~sumt, and the defendant offered matter by way of set-off; b~it it was rejected, on the ground that it ought to have been set off in a former action of trespa~8, between the same parties.
    This was the only point. The counsel submitted the return, with the affidavit annexed, to the court; and from ~hexn it appeared, that HortQn sued Allen before the same justice in two actions; one in tres~a8s, and the other in a8sumps~t; and in both suits the summons was returnable, at the same time and place. The action of trespass was first brought on to trial, and issue joined, and then adjourned to a future day. Immediately after, the present cause came on, and the above set-off was rejected.
    At the adjourned trial of the trespass cause, the setpff in question was allowed,
   Per Curiam.

The fact stated by the justice, that the set-off h~cl been subsequently allowed in another action, cannot be taken notice of upon his return in this cause, because it was going out of the case. was testimony not within the requisition of the certiara~i, and for the truth of which the justice could not I~e responsible, in an action for a false return. The refusalof the set-off was wrong, because it was not strictly admissible in the former suit, which was trespass. For that reasor~, the judgment must be reversed.

Judgment reversed.  