The plaintiff’s declaration, as well as his evidence, shows that the oxen, for the price of which this suit is brought, were delivered by the plaintiff to the defendant in part payment of an existing debt, and not on a contract of sale on a credit.
The evidence in the case would have afforded the plaintiff a good defence, to the extent of fifty-five dollars, in the action brought by the defendant against the plaintiff'upon the notes. it could only have availed the plaintiff as a defence as payment, and not as a set off. A set off can only he of an existing debt, for the recovery of which the party pleading might have maintained an action. Had the plaintiff, before the suit brought against him on the note by the' defendant, commenced an action against the defendant for the price of the oxen, as on a contract of sale, it cannot be pretended that he could have succeeded. '
The evidence in this case would have made a complete defence to such action ; it would have shewn conclusively that the oxen passed from the plaintiff to the defendant iji part payment of a debt, and not on a contract of sale on a credit. This action cannot be supported on the ground of a sale of the oxen in question, on a credit, as all the evidence shows it was not so ; if supported at all, it must be on the ground that the defendant recovered more in the action on the notes than was due to him. On this ground, the plain*35tiff cannot recover. No legal question is more fully settled and at rest, than that the merits of a judgment recovered in a court of competent jurisdiction, whilst unreversed, is conclusive as to the subject matter of it, to every intent and purpose, and cannot be re-examined in a new action founded on evidence which would have made a defence to the original suit.
Tilton, for the plaintiff.
Sullivan, for the defendant.
This is to be regarded as a first principle, which cannot now be shaken, even to do what seems to be consistent with justice in a particular case, without endangering the best interest of society. 1 Lord Raymond 742, and Mariot vs. Hampton, and 7 T. R. 269. Philips vs. Hunter, and 2 H. Bl. 413, White vs. Ward & al., and 9 John. R. 232, Heller vs. Jones, and 4 Bin. 67, Thatcher & al. vs. Gammon, and 12 Mass. Rep. 268.
There would be no termination of suits, if parties who were sued on contracts were permitted to lie by and suffer a judgment by default, and then institute suits to recover back payments made on the contract on which judgment had been so rendered, and which might and ought to have been used as a defence in the original action.
The reasons for adhering to the law on this subject, as settled, are still stronger here than in some of the other states in the Union and in Great Britain, as this court is by statute authorized to grant new trials, even in cases of judgment rendered on default, when it is made to appear that justice has not been done betwixt the parties.
When this circumstance is considered, the seeming hardship of the plaintiffs case disappears.
Verdict set aside mid a new trial granted.