The demurrer was rightly overruled. 1. The defendant having elected to avail himself of his claim .against the plaintiff for damages by means of a separate action, and having brought his action, and prosecuted it till a verdict was rendered, could not also avail himself of the same claim in mitigation of damages in this suit.

2. The defendant’s answer could not avail him. The note was given in settlement of the plaintiff’s wages, after the facts on which the defendant relied had occurred, and were known to the parties. There can be no right in such a case to resist the payment of the note by setting up a tort committed by the plaintiff while in the defendant’s service.

Exceptions overruled.