GOLDTHWAITE, J.
— The charge of the Circuit Court seems to have been predicated on the supposition, that the payment created a right of action, which could be enforced as a set-off against the demand of the party to whom the payment was *104made. There is no question but it would be a good defence in whole or in part, to the action; but the defence would bear no resemblance to a set-off, which may be used, or omitted at the pleasure of the defendant. The payment was an extinguishment joro tanto of the debt, and should have been used as a defence to Broughton’s action. If then omitted, it was the fault of the defendant, and he cannot, in accordance with the rules of law, be now permitted to maintain this action, as it would open the investigation which was or should have been closed in the previous suit. The cases cited by the counsel of the plaintiff in error, are precisely similar, and completely decisive of the question now raised.
Let the judgment be reversed and the cause remanded.