Stone v. Miller

7 Barb. 368

• Court: New York Supreme Court
• Decided: November 5, 1849
• Status: Published

Opinion

By the Court, Welles, J,

The judgment of the county court should be affirmed.

1st. The plea upon which the question arises was of matter in abatement, and was bad on general demurrer, as a plea in bar. It was nevertheless pleaded in bar.

2d. The first suit was an action of trespass on the case. This does not necessarily mean an action in which a set-off was admissible. It may have been trover or for fraud, or any other action on the case not including an action on a contract, Indeed an action on the case is not understood to include assumpsit, debt, or covenant, which are about the only actions sounding in contract, triable before a justice. If it was not founded upon a contract, a set-off would be inadmissible if objected to.

Judgment affirmed.