¶1The judgment of the county court should be affirmed.
¶21st. The plea upon which the question arises was of matter in abatement, and was bad on general demurrer, as a plea in bar. It was nevertheless pleaded in bar.
¶32d. The first suit was an action of trespass on the case. This does not necessarily mean an action in which a set-off was admissible. It may have been trover or for fraud, or any other action on the case not including an action on a contract, Indeed an action on the case is not understood to include assumpsit, debt, or covenant, which are about the only actions *370sounding in contract, triable before a justice. If it was not founded upon a contract, a set-off would be inadmissible if objected to.
¶4Judgment affirmed.