"SEC. 34. No party shall be permitted to introduce at the trial, any note, bond, debt, or other claim against his adversary, which he shall have acquired after the commencement of the suit."

Where actions are brought before a justice of the peace on two notes, returnable at the same time, which if consolidated, would exceed one hundred dollars, a judgment on the first note is not a bar to a judgment on the second. Each note constitutes a separate demand. If a controversy exist as to the amount of a set-off, a party is not bound to give credit before the commencement of a suit for the exact amount to which the trial may show the party entitled.1

A note transferred by delivery merely, cannot be set off by the holder, in an action against him by a third party. The holder could not sue upon the note in his own name, and it therefore is not a legal subsisting cause of action in his favor.2 Demands to be set off must

be mutual, and exist between the parties to the record.

A separate demand cannot be set off against a joint demand; nor can a joint demand be set off against a separate debt, unless upon some prior agreement.5

Recoupment.-Mutual demands arising out of the same subject-matter, and capable of being balanced against each other, may be adjusted in one action, by recoupment. It is not necessary that the opposing claims should be of the same character. A claim originating in contract, may be set up against one founded in tort, if the counter claims arise out of the same subject-matter, and are susceptible of adjustment in one action; but the defendant in such case cannot, as in set-off, recover any excess in his favor; his claim is used in mitigation of damages only.

In an action of assumpsit for the recovery of the price of an article sold at a stipulated sum, a defendant may give evidence showing the true value of the article sold, in case of a breach of warranty, in reduction of the amount claimed, as well in cases of a sale with warranty, as in cases of fraud; such evidence being allowed to avoid circuity of action, and to prevent further litigation upon the same matter

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The defendant should always, at the time of joining issue, give notice with his plea, of his set-off, or he will in strictness thereafter be precluded from making it at the trial. In case of recoupment the same

(1) 11 III. 563.

(4) 11 III. 28.

(7) 4 Wend. 483; 8 Id. 109.

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precaution should likewise be taken. But this will generally be a matter of discretion with the justice.

5. Of Pleas, Puis Darrein Continuance.2

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Formerly there were formal adjournments or continuances of the ceedings in a suit, for certain purposes, from one term to another, and during the interval the parties were, of course, out of court; and when any matter arose which was a ground of defense, since the last continuance, the defendant was allowed to plead it, which allowance was an exception to the general rule that the defendant can plead but one plea of one kind or class.

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If any matter of defense has arisen in a suit, after an issue in fact or joinder in demurrer, and before the trial of the cause, it may be pleaded by the defendant; as that the plaintiff has given him a release, that the defendant has paid the demand; and in short, any matter which if it had occurred before the commencement of the suit, would have been a good defense.*

A plea puis darrein continuance waives all previous pleas, and if the matter of that plea be determined against the defendant, it is a confession of the matter in issue. The plaintiff must nevertheless prove his demand, the same as if no plea had been put in, in the cause.5

It seems to be settled that this plea may, in all cases, be received in a justice's court, where it could properly be received in a court of record.

6. Of Pleading title.

In case of trespass by cutting timber it is provided, by the Rev. Stat. 525, Sec. 2, "That penalties herein above provided, shall be recoverable, with costs of suit, either by action of debt, in the name and for the use of the owner or owners of the land, or by action qui tam in the name of any person who will first sue for and recover the same; the one-half for the use of the person so suing, and the other half for the use of the owner or owners of the land. Provided, That if in any action that may be instituted by virtue of the provisions herein contained, before a justice of the peace, the defendant shall set up a title to the land on which the tree or trees are alleged to have been cut, felled, boxed, bored or destroyed, and shall forthwith give good and

(1) 22 Wend. 155.

(3) 2 Bouv. L. D. 389.

(2) An old French word signifying since the last continuance.

2 Bouv. L. D. 389.

(5) 14 Wend. 161; 10 Id. 675. (6) 1 Hill, 69.

(4) 1 Chit Pl. 697.

sufficient security, to prosecute his claim or title to the said land to effect, within one year, or to appear and defend an action to be instituted against him within one year, by virtue of the provisions herein contained in any court of record within the State, having cognizance thereof, and in either case to abide by and satisfy the judgment that may be given in such court; then the said justice shall proceeed no further in the said cause, but shall forthwith dismiss the parties; and it shall be the duty of the said justice, thereupon, to tax the bill of costs that may have accrued before him; and so soon as the action shall be renewed or instituted for the purpose aforesaid, to transmit the said bill, together with the recognizance to be taken as aforesaid to the clerk of the court in which such action shall be instituted or renewed; which costs so taxed and transmitted, shall be made a part of the judgment to be rendered as aforesaid.

"SEC. 3. If the said recognizance shall be forfeited for not prosecuting, as aforesaid, the justice shall proceed to enter judgment against the defendant for the demand of the plaintiff, which shall be taken to be confessed, and execution shall thereupon issue against the defendant and his security or securities; and if the said recognizance shall be forfeited for not appearing and defending, or not abiding by and satisfying the judgment that shall be given in the court above, the party, for whose benefit such recognizance was taken, may, by a writ or writs of scire facias, proceed to judgment and execution thereon."

Form of Recognizance of Defendant when Title to Land is set up.

Be it remembered that on day of —, 18—, A. B. of - in said county, and C. D., and E. F., of the same place, personally came before L. M., Esquire, a Justice of the Peace of the said county, and severally and respectively acknowledge themselves to be indebted to G. H., that is to say, the said A. B. in the sum of fifty dollars, and the said C. D. and E. F. in the sum of fifty dollars, each to be levied of their respective goods and chattels, lands, and tenements, to the use of the said G. H., if the said A. B. shall make default in the condition following:

WHEREAS, in an action of debt, under the Revised Statute, chapter one hundred and four, title, "Trespass," before L. M., Esquire, a Justice of the Peace of the county of - in which the above named G. H. is plaintiff, and the above bounden A. B. defendant, the said

A. B. sets up title to the following described tract of land, to wit: (describe the land,) upon which it is alleged by the said plaintiff that the said defendant has cut certain trees, (or as the case may be.)

Now the condition of this recognizance is such, that if the said A. B. shall prosecute his claim or title to the said land to effect within one year, or appear and defend an action to be instituted against him within one year, under and by virtue of the provisions contained in the aforesaid chapter of the Revised Statutes, in any court of record within this State having cognizance thereof, and in either case will abide by and satisfy the judgment that may be given in such court, then this recognizance to be void, otherwise to remain in full force.

The replication is the plaintiff's answer to the defendant's plea.1 When the plea of the defendant has been put in, if it does not amount to an issue or total contradiction of the declaration, but only evades it, the plaintiff may plead again, and reply to the defendant's plea, by way of replication; either traversing it, that is, totally denying it; or he may allege new matter in contradiction to the defendant's plea.2 Pleadings before justices of the peace, however, will seldom extend beyond the plea, or defendant's answer to the plaintiff's declaration.

VII. OF DEMURRERS.

When the declaration, plea or replication, &c., appears on the face of it, and without reference to extrinsic matter, to be defective in point of law, the opposite party may in general demur. A demurrer has been defined to be a declaration, that the party demurring will "go no further," because the other has not shown sufficient matter against him. Demurrers are either general or special; they are general when no particular cause is alleged; and special, when the particular imperfection is pointed out, and insisted upon as the ground of demurrer.* (1) 2 Bouv. L. D. 439. (2) 3 Bl. Com. 310. (3) 1 Chit. Pl. 700.

(4) Id. 701.

In practice before justices of the peace, it is apprehended that as the pleadings are generally put in orally, the party demurring to a pleading, will usually point out at the time the defect of which he complains, so that demurrers in this court will usually be special. If the opposite party be satisfied that the pleading demurred to is defective, he should apply to the court for leave to amend, which should, of course, be granted. If, however, he think the pleading sufficient, he should join in demurrer, by insisting that the pleading demurred to is sufficient to sustain or bar the action. This would form what is called an issue in law, which is to be decided by the court upon the facts alleged by the party in the pleading demurred to, for a demurrer admits the facts alleged in the pleading to be true, but insists that they are not sufficient in law to sustain, or bar the action.

If the justice should decide in favor of the party demurring, he should, of course, permit the opposite party to amend his pleading thus demurred to; and on the other hand, if he should decide against the party demurring, he will permit him to withdraw the demurrer, and answer to the pleading demurred to. If, however, no application be made to amend or answer the pleading, the judgment will be final; if in favor of the defendant, for his costs, and if the demurrer be to a declaration, or other pleading of the plaintiff, or by the plaintiff to a pleading of the defendant, and is decided in the plaintiff's favor, the court must proceed and ascertain the amount of his demand, and render judgment against the defendant therefor.1

(1) See 1 Chit. Pl. 700 to 709; Gould's Pl. Ch. 9.