Beebe vs. Bull, 12 Wend. 504

By the Court, Sutherland, J. The demand of the plaintiff in this suit was properly rejected as a set off by the referees ; it could not legally have been allowed. The defect was ■ not in the proof, but in the nature of the demand. The goods were transported by Bull, upon an agreement with Alvah Beebe, to pay the partnership account of Jed-e-diah and Alvah Beebe. This was his express agreement. There was an express appropriation by the parties of these services to the partnership account.

Bull could not have recovered the amount from Beebe, unless he had refused to credit it to him as the partnership demand, and of course he could not set it off against an individual account of Alvah Beebe. The rule upon this subject is correctly stated by the chief justice M’Guinty v. Herrick, 5 Wendell, 245, as follows : If a party to a suit, either plaintiff or defendant, present a demand which is legal and proper to be allowed if supported by sufficient testimony, and the jury pass upon it and disallow it, such demand cannot be recovered in another suit. 2 Johns.

R. 210. 6 id. 168. 2 id. 229. 16 id. 136. 15 id 229, 432. The error of the jury may be ground for granting a new trial when brought up on a case, or for reversing the judgment when brought up on certiorari; but it cannot be received collaterally. The verdict is conclusive, unless it appears that the claim rejected by them could not legally have been allowed. The cases of Bull v. Hopkins, 7 Johns. R. 22, and Wolf v. Washburn, 6 Cowen, 262, fully support the opinion that the party is not precluded, where the demand rejected by the jur-y could' not legally have been allowed.

Such was clearly the case here, upon the evidence before' the referees, and the former trial is no bar to. this action. The referees undoubtedly stood in the place of a jury, and their decision in relation to this matter would produce the same legal consquences. 12 Johns. R. 219. The exception to Walbridge’s testimony was too broad. A part of it was clearly competent, but the objection went to the whole, and was therefore properly overruled. The objectionable part of the evidence was also very unimportant.

The plaintiff was not concluded, by the decision of the referees that his demand could be recovered from the partnership only, from subsequently bringing an action against Al-vah Beebe. If it was, in truth, a demand against the firm, as Beebe proved to the satisfaction of the referees on the former trial, he should have set up that defence in this action. The decision of the referees was not evidence for him on that point. J udgment affirmed.