pronounced the opinion of the Court.-— In deciding, whether the plaintiff was entitled to a review, as he claimed to be, it is necessary to compare various statutes upon the subject of reviews, and ascertain how they will stand together. Before the statute of 1811, which will be noticed in its order, the several statutes, then in force, contained the following provisions; to wit: offsets might be pleaded before a justice of the peace, of matters within his jurisdiction, and go up with the action to the county court, by appeal: or they might be newly pleaded before the county court, after the appeal was entered there. But no offset could be there pleaded, of any matter, which might not have been pleaded before the justice, as being within his jurisdiction. And no review could be had in the county court, of any cause, which came there by appeal. But either party might once review any action originally commenced before the county court. And the statute, which regulates the negotiability of notes, (see page 144,) provides, that the signer of any such note may plead in offset, against the indorsee, all demands, proper to be pleaded in offset, which he may have against the payee before he is notified of the indorsement. At that period an action upon this note of $77, must have been brought before the county court; it being then above the jurisdiction of a justice of the peace. If so brought, and this offset filed, either party might have once reviewed the action.
The statute of 1811, (see page 104,) provides, that, in actions, appealed from a justice of the peace to the county court, if the plaintffis indebted to the defendant by bond, &.C., the defendant may plead the same in offset to the plaintiff’s demands, in the same manner, as if the action had been originally commenced in the county court, and had been within the jurisdiction of the same ; and, when the demand, so pleaded in offset, is such, as is within the original jurisdiction of the county court, either party has the same right to a review, which he would have had, if the suit had been originally commenced before the county court. With all these statutes in force, the assignment of this note by Beckwith to BIoss could not take away the right of Kittridge, the signer of the note, to plead in oflset any demands, against Beckwith, which *276would be pleadable in offset if the suit were in the name of Beck-with ; nor take away his right of review, after a decision against him. And, by the several statutes, the right of review, if it exist at all, is mutual; the plaintiff might review as well as the defendant.
This leads us to consider, whether the defendant’s pleas in offset are such, as would entitle either party to a review, under this statute of 1811, supposing this statute still in force. This must depend upon the amount claimed in these pleas. The defendant has alleged a breach of each promise in his several pleas, without adding the ad damnum in any technical form ; but, instead of it, has prayed that- the said sums may be set off against said note according to the statute in such case provided. These four counts exhibit a claim of four hundred dollars ; that is, one hundred dollars in each count. We may conjecture, that his declaring for $ 100, for the unsoundness of one black gelding, and the same sum for the unsoundness of another black gelding,and a like sum for money liad and received,and a like sum lor money laid out and expended, are different ways of declaring, yet mean a recovery for the same thing ; yet nothing could prevent the defendant’s recovering the whole amount of each count, with sufficint proof of their truth. Here, then, are put together into one declaration in offset, what would extend to the utmost bound of a justice’s jurisdiction, in four actions. Decisions have settled the law, that several small notes, amounting together to more than one hundred dollars, when joined in one declaration; give jurisdiction to the county court. Six notes-of twenty dollars each may present such an action. This plea is, in form as well as- substanee, a plea in offset-. As to its form, it should begin and end as a plea in bar ; and the reasons of the bar should be, that the payee of the note was and is indebted to the defendant, he. See this point decided in the case of Martin vs. Trowbridge and Runnells, 1 Vt. Rep. 477. Without regarding the form, the substance of the plea is within the original jurisdiction of the county court; and there is nothing now before us, showing any part of this plea to be fictitious ; and, if there were, the defendant- must not be permitted to object to a review on that account. This would come vvith more propriety from the other party. This leads to the conclusion, that, if the statute of 1811, before noticed, is considered'to be in force, this, review ought to have been allowed.
If that statute has been repealed, it has been by virtue of the contrary provisions of the act of 1826 ; whereit is provided, that no.' *277review shall be allowed in any action, brought to the county court by appeal. This, it will be perceived, includes pauper cases and probate cases,as well as appeals from a justice of the peace. The statute of 1797, contained precisely the same provision, with regard to cases appealed from a justice of the peace : but the act of 1811, being of later origin, there was no interference, but the lat- . ter had its effect to govern the cases which came within it.
The question is now presented, whether the provisions of this statute of 1826 are contrary to those of the statute of 1811, or whether those may not be in full force to govern the particular cases not named in any other statute. There have been several decisions, which furnish analogous principles to aid our deliberations upon this point. The case of Baker vs. Blodget, reported by Judge Aikens, was an action brought before a justice of the peace upon a demand so small as not to be appealable. The defendant filed in offset a demand large enough to be appealable. He recovered a judgement against the plaintiff, who appealed to the county court. On the defendant’s motion, the court dismissed the appeal. The plaintiff brought a writ of error, and this Court reversed the judgement. It was considered as having become a different action, by the addition of the offset; or rather both together formed the action. Afterwards the parties referred this action, and all demands, to referees, whose report settled the merits of the controversy. This again was considered as making a new action, in reference to the taxation of costs in favor of the plaintiff, who was otherwise curtailed in his costs by his having appealed the action. When new matter is brought upon the record by a plea in offset, the action ceases to be the same action, that it was before.
The statute of 1826 refers to such actions, as can by law come to the county court by appeal. Such offsets as might be filed before the justice, whether they be filed there, or in the county court, do not render the action liable to a review in the county court. But those, which cannot come to the county court by appeal, in the shape they assume under the provisions of the act of 1811, when that shape is given them, cease to be governed by the act of 1826. In other words, an action brought to the county court by appeal, and having an offset filed there, which could not be filed, were it not for the act of 1811, is open to review by virtue of that act; and its provisions are not repealed by the later provisions of the act of 1826. The twd statutes are to be considered as referring tó different subjects.
J. Mattocks, Cushman & Burbank, for plaintiff. Wlelcher, Shaw & Chandler, for defendant.It is suggested in argument, by the defendant’s counsel, that this offset should be considered as of no greater amount, than the plaintiff’s demand, because no greater sum than that can be allowed in this action. It is true, let the offset be ever so large, when filed against the indorsee, its legal effect is only to bar the plaintiff’s action. But that does not render the offset such as might have been pleaded before a justice of the peace, or such as could not have been originally cognizable before the county court. Upon this mode of reasoning, there could be no offset filed by virtue of the statute of 1811 ; for that statute requires the action to have come into court by appeal from a justice of the peace; and, of course, must be considered as within the jurisdiction of such justice. It also requires the offset to be one, which could not have been filed before the justice — one out of his jurisdiction. The plain provisions of the statutes ought not to be thus evaded.
Upon the plaintiff’s entering bail, before this Court, to prosecute his review before the county court, there may be entered a reversal of the judgement of the county court, and the grant of a review in the action.