delivered the opinion of the court. Several objections were raised to the validity pf the proceedings below, but it will be sufficient to notice one that goes to the merits of the case. The defendant plead a former suit by him against the plaintiffs in bar, and they replied, that their demand being for uncertain damages, could not be set off in the former suit, and the justice overruled the plea. The existence of the former suit was not put in issue, but, admitted by the replication, which also admitted that the, *58^cman,;'1 &r which the present suit was brought, -had not been pleaded or set off in the former suit. The simple point, therefore, is, whether it ought not to have been set off. The ninth section of the ten pound act states, that the defendant may plead or set off his account or demand against the plaintiff, and that if he neglects or refuses so to do, he shall forever thereafter be precluded from any action to recover the same. The words here are very broad. It is his account or demand that is to be set off. In England, unliquidated damages cannot be set off, for the set-off statutes speak only of mutual debts. Our statute receives a similar construction, for it applies only to persons dealing together and indebted to each other. But I think the act in question requires a more extensive construction, and that the word demand here must apply, at least, to all matters arising upon contract. The act is very imperative, and intended to prevent cross suits, and a course of petty and vexatious litigation, in respect to demands within the jurisdiction of a justice. It is not necessary, at present, to say whether the word demand in the act, will reach to every matter within the cognizance of a justice, nor do I mean to be understood to that extent. But as to demands arising upon contractj I am of opinion, they ought to be pleaded or set off, and consequently, that the justice determined erroneously in this case. The return states, that the same pleas were afterwards introduced and argued before the jury, but we are here to understand that the pleadings still included the same admissions of the parties, and that the fact of the existence of the former suit, and of the omission to set off, was not controverted. The jury, therefore, by their verdict, confirmed the erroneous decision of the justice, and for this cause., I think the judgment below ought to be re- ' versed.
Judgment reversed.