No objection is made to the declaration, and it is assumed to be sufficient to show a cause of action. The second plea is, in substance, that after the cause of action in this case had accrued, and before the commencement of said suit, the defendant therein brought an action of assumpsit, in the justice’s court, against the plaintiff, in which suit the same cause of action set out in the declaration in this case, was set off by the defendant in that suit; and said alleged cause of action was then and there heard, tried, and deter *294mined, with, the other matters in question in said cause, and judgment thereupon rendered in favor of the plaintiff therein for damages and costs.
This was, undoubtedly, a good plea in bar; for, if true, it showed thát the alleged cause of action was merged in the judgment rendered in the first cause. But the replication furnishes a decisive answer to the plea, by denying that the alleged cause of action was heard and determined in the former case, as the plea states. An issue was thus tendered on this vital part of the plea; and as the demurrer concedes the truth of the replication, the plea, in this respect, was necessarily untrue. The bar interposed by the plea was thus destroyed, and upon these pleadings the plaintiff was entitled to judgment.
The third plea was bad in substance. It was pleaded in bar to a right of action in which the plaintiff was entitled to recover $1050 as liquidated damages, or his damages were wholly unliquidated. It is of no consequence which is the true construction of the contract declared on; for in neither event was the plaintiff bound to make a set-off of his right of action in the former case.
1. If the contract declared on, shows that the plaintiff was entitled to recover $1050, as liquidated damages, it was not a, cause of action which he was bound to set off. (2 R. S. 236, §§ 57, 58, sub. 1.)
2. If, according to the declaration, the plaintiff’s damages were unliquidated, they were not the subject of a set-off, and the former suit was no bar to this. (Id. 234, § 50, sub. 3; 236, § 57.) As this plea was bad in substance, it is unnecessary to look at the replication. The plaintiff should have had judgment on the demurrer to this, as well as to the other replication.
The judgments of the justice and the common pleas were erroneous, and must be reversed.