Wilder v. Case and others, 16 Wend. 583

By the Court, Cowen, J. I am satisfied, on the whole, that the introduction of the matter, by which the action in the common pleas was sought to be sustained as a defence in the suit before the justice, should have been put to the jury as a bar. Admitting that it was not available as a set-off, because the claim was unliquidated, 2 R. S. 234, § 50, sub. 3 ; id. 236, § 58, sub. 5; or, if proper, that its exclusion on the objection of Wilder would have avoided the objection of omis-. sion to set-off, Phinney v. Earle, 9 Johns.

R. 352, had the then defendants stopped there; yet it is well settled, that where a matter is improper by way of defence in a justice’s court, (for example, by way of set-off,) if a party will introduce it, and he goes into its investigation with the view to make it available, and it passes and is submitted to the justice or a jury, it cannot be heard again. M‘Lean v. Hugarin, 13 Johns. R. 184. Skelding v. Whitney, 3 Wendell, 154, 157, and cases cited by Marcy, J. at the latter page. Curtis v. Groat, 6 Johns. R. 168. But M'Guinty v. Herrick, 5 Wendell, 245, per Savage, C.

J., seems contra; no cases, however, were cited by the C. J., and the point was not involved in the case. The jury, on the trial in which Wilder was plaintiff, either allowed or disallowed it as a defence; they allowed the whole or a part. Take the latter alternative. It has been again and again held, that you cannot split an entire claim into several parts and have more than one action. The same principle applies here.

The defendants below could not divide their claim for damages and take a part of it, by way of recoupment, in the justice’s court, and then come for the whole or any part of the claim to the common pleas. I understand by the decision which received the evidence, that it was to go as a defence in whole or in part; as a bar, or in mitigation of damages. The only way in which the plaintiffs belotv could save their right to a subsequent suit, was by stopping short the moment that the qualified admission of their evidence was announced by the decision of the justice.

Instead of that, they proceeded to give in evidence, and argued to the jury, the identical matter which they afterwards sued upon before another magistrate and set up on the appeal in the common pleas. The rule is strict and technical, and may operate with severity in this instance; looking at the amount of the recovery and the other evidence, I fear that it does. So does, many times, the statute of limitations; but the courts and the community must maintain both. Excessive litigation is an evil, and the door must be shut against it on a single trial in the one case, or the lapse of six years in the other.

All the law will permit by way of opening the judgment or decree of a court of competent jurisdiction, is a review of its decision for error, on appeal, or a proceeding in nature of an appeal by certiorari or writ of error. If the justice erred, there was a direct remedy in that way; but while the verdiet and judgment before him stood unreversed, it concluded the parties as firmly as if the matter had been passed upon by the highest court of judicature in the state, The judgment, of the common pleas must be reversed ; venire de novo to issue from the common pleas.; costs to abide the-event.