— “ We can perceive no objection to the cause of action, and Waterhouse made no motion to dismiss in the.Circuit Court, but on the contrary must have resisted that made by Fickle.

“ As Fickle succeeded, in the Circuit Court, in reducing the judgment Waterhouse had obtained before the justice more than five dollars, and obtained a judgment in his own favor, it is evident that, this is not a case covered by the 3d clause of section 175, ch. 47, (p. 892) of the Revised Statutes, as he alleges it is,”

Judgment affirmed, &c.