This was not proceeding to inquire into the merits of the cause. The justice was very correct in this respect.

[*] It was next contended, that the justice had improperly over-ruled the testimony of the defendant below, who was' the plaintiff in this Court. It appeared by the record of the justice, that this tesfimony was offered to prove a set-off and was rejected on the ground that the defendant had not filed a plea of payment.

By the Court. — This was correct.*

It was contended, that the demand below was for a tavern debt; hut it appeared that the tavern act was pleaded, and that a jury had passed on tho account.

By the Court. — -This was a question of fact, and was proper to he tried by a jury.

Judgment affirmed.