It does not appear whether the plaintiff had declared in the court below, before the cause was removed into this court by habeas corpus; nor was that fact material, for the record is not removed by this writ, and the plaintiff declares de novo, in this court, and may declare for a different cause of action. The suit here is not a continuation of the suit below, technically considered, though for certain purposes of justice, the court will take notice of the former suit; the plaintiff was therefore entitled to recover for the plaster of Paris, as that debt was due before the commencement of the suit here. (Coleman’s Cases, 36. Platt v. Platt.) The next question is, whether the defendant was entitled to set off the note purchased after the commencement of the suit below, and before the suit was removed into this court. As the plaintiff is entitled to declare for a cause of action accruing after the suit below, it would be unjust not to allow the defendant to meet such new cause of action by a new defence, perhaps accruing out of that very cause; as where the plaintiff should declare on a new running account; or upon a transaction occurring in a course of mutual dealings. In one case the court will take notice of the former suit, so as to protect the plaintiff; and that is the case of a plea of the statute of *95limitations; for it would be the height of injustice to allow the defendant to defeat the plaintiff of his remedy without his default. (1 Sid. 228. 2 Salk. 424. 2 Ld. Raym. 1427.) It is said to be a general rule, that the court will not suffer the defendant to prejudice the plaintiff, by removing the cause; and, therefore, if special bail was required in the court below, and not in the court above, according to the usual course of the court; yet, in this case, the defendant must give bail, because it was required below. (12 Mod. 646.) And yet, in another case, the books seem not to be consistent in the support of this principle. In Hetherington v. Reynolds, (1 Salk. 8.) it was ruled that if a feme sole be sued in an inferior court, and after plea marries and removes the cause, by habeas corpus, she may plead coverture in abatement to the new declaration above. It was, however, subsequently ruled otherwise, in Haddock v. Hotoard; (Barnes, 355.) and the latter decision is certainly the most sound in principle. These pleas, then, of the statute of limitations and of coverture, are, perhaps, the only ones which the plaintiff has been permitted to defeat, by replying the suit below. And unless he be confined in his declaration, to a cause of action accruing prior to the suit below, he ought not to confine the set-off to that period. This rule, to be just, must be mutual. It may be said, that a defendant can thus defeat a valid cause of action, by removing the cause, and purchasing a note to set off against the demand. The answer is, that the plaintiff may equally increase his demand by such means; and that he is not obliged to declare in the court above, for he cannot be nonsuited for not declaring; and, perhaps, if the fact of the defendant’s purchase of a note was suggested to the court, on the return of the habeas corpus, it might be ground for a procedendo, according to the intimation of the K. B. in the case of Hetherington v. Reynolds.
*96The next point in the case is, whether the set-off of the horses was admissible. We think it was, for the reason mentioned by the judge at the trial; and, consequently, the judgment is to be entered for the defendant, for 216 dollars and 62 cents.
Judgment accordingly.