¶1The former suit by the defendant, in which it was alleged that the plaintiff ought to have set off his demand was an action of trover. It was an action founded on a tort, and, according to the construction given to the act, (sess. 36. c. 53. s. 6. 1 N. R. L. 381.) in the cases of Allen v. Horton, (1 Johns. Rep. 23.) and Dean and Chamberlain v. Allen, (8 Johns. Rep. 390.) no set-off was admissible. The. justice was, therefore, correct in deciding that the former suit and trial was no bar to the present suit. The judgment must be affirmed.
¶2Judgment affirmed.