delivered the opinion of the Court.
John Mills, executor "of Charles Mills, deceased, brought suit before a justice against Hall, upon the following note: — “One day after date, I promise to pay to John Mills, executor of the estate of Charles Mills, deceased, ninety-three dollars, for value received. St. Louis, Aug. 17, 1843.” The defendant set off an account for medical services alleged to have been rendered to Charles Mills in his lifetime, during the years 1832, ’3 and J4. The plaintiff recovered a judgment for the amount of the note, and the defendant appealed to the Circuit Court. In that court, a trial was had, and the court allowed the statute of limitations to be interposed as a bar to the allowance of this set-off. A judgment having *217been again given against Hall, the case is brought here, and the instruction of the Circuit Court which allowed the bar of the statute, is the only-error insisted on. The objection taken is, that the statute was not used as a defence before the justice, but it does not appear from the bill of exceptions how this was, and if it were as stated, the defence was a proper one. The statute prohibits a party from using a set-off in the Circuit Court which was not relied on before the justice; but does not prohibit a defence to be set up in the Circuit Court which was waived or neglected in the trial before the justice.
The other Judges concurring,judgment affirmed.