The opinion of the court was delivered by

1. The item of $1,68 in the defendant’s account, for pasturing the plaintiff’s cattle, was properly disallowed by the auditor. If the plaintiff were liable at all to pay the defendant for his cattle going upon his land, it could only be enforced by some action in form ex delicto. There was no request on the part of the plaintiff to have his cattle go there, and no license, or permission, given by the defendant. If the plaintiff were liable at all to the defendant, (which it is not necessary now to decide,) it was a mere tort; and the defendant could not, without some agreement between the parties, change it into a contract. The very question has been fully considered by the court at this term in the case of Stearns v. Dillingham., and the views of the court are fully given in that case.

*5192. The auditor was correct, also, in refusing to allow the amount of the judgment in favor of the defendant against the plaintiff. The judgment was not a proper item of account between the parties; and, indeed, it was not claimed to be allowed by him as such, but as an offset merely. The duty of an auditor is merely to adjust the accounts between the parties to the time of making his report; any defence to any item of the account may be set up before the auditor, —such as payment, tender, or the statute of limitations; but a mere independent offset, not a matter of account, must be pleaded in the county court. Such has been the uniform practice and course of decisions in this state, and such we deem the more correct and convenient practice.

3. As to the defendant’s plea in offset and the plaintiff’s replication of tender. The defendant claims, that the tender of the amount of his judgment, being subsequent to the commencement of the plaintiff’s suit on book account, was too late in point of time and cannot avail the plaintiff to defeat the offset.

It is undoubtedly true, that, if the defendant’s judgment had been a proper item of account between the parties, the tender could not have been made subsequent to the commencement of the plaintiff’s suit. The accounts between the parties are considered as entire, and neither party can single out a particular item and make a valid tender upon it, and thereby change the balance between the parties. Such were the cases of Pratt v. Gallup and Wing v. Hurlburt. But in this case the judgment was a distinct, independent claim, and could not be considered as in litigation between the parties, until it was pleaded in offset; — the pleading it in offset is to be considered as the commencement of proceedings upon the judgment. The defendant was not bound to plead it in offset. He might enforce it by execution, or by a separate suit upon it. Until the judgment was pleaded in offset, we think the plaintiff clearly had the right to make a tender of it to the defendant. This point was decided, on the present circuit, in Orange county, in the case of Town of Thetford v. Hubbard.

It is objected, that this tender was not brought into the justice court, when the case was first tried. As this question is raised upon a demurrer, it must be decided upon what appears upon the pleadings. Nothing appears upon the face of the pleadings, but *520what the offset was first pleaded in the county court, and that this was the first opportunity the plaintiff had to set up his tender; and if so, he certainly could not be called upon to bring the tender into court, until it became necessary to plead it.

We are not prepared to say, however, even if it appeared, that the offset was pleaded before the justice and the plaintiff omitted to reply the tender then, that he could not afterwards do it, when the offset was pleaded in the county court; — but we do not decide that point, as it does not become necessary in the determination of the case here.

We see no objection whatever to the form of the plea in offset, or the replication of tender.

The judgment of the county court is therefore affirmed.