Opinion oe the Court by

In this action appellant attempted to make defense by setting up a writing executed by one Wells to him containing a covenant of warranty of the jack, for a part of the price of which the note was executed by way of counterclaim, and to which he made Wells a defendant. On the trial in the court below, appellee pleaded non est factum ?,nd his plea was sustained, but judgment was rendered against Wells, from which he appealed to this court and reversed the judgment against him. 1 Duv. 366. And it was then decided that said writing could not be the foundation of a counterclaim. *401That was the only defense made to the action or relied upon in the court below, and as that defense was adjudged insufficient and ordered to be dismissed, it stood as if no defense had been made, and of course plaintiff below was entitled to a judgment.

Besides, the question is concluded by the former adjudication of this court.

Wherefore, the judgment against appellant is affirmed.