Tate v. Tate

2 Grant 150

Opinion

Opinion.

- Per Curiam.

— The court was in error in rejecting the defendant’s set-off. He is not restricted on appeal to the set-off relied on before the justice, else he would be barred of a claim never litigated, by a record in which there is no judgment. He is not barred, because of not including these set-offs in his bill or specification before the justice; for here the trial is de novo, and to exclude it here for want of specification, is to bar it entirely, whereas, in ordinary cases he would merely be put to his separate action. Excluding set-offs for want of specification, is not at all like the bar of the right that follows from not presenting them in the small suits before justices of th.e peace. This is the only error insisted on.

Judgment reversed and a new trial awarded.