Smith v. Burke — 10 Johns. 110

Majority

p. 110

Smith against Burke.

ALBANY,

Jan. 1813.

Headnote

Where, in an action before a justice, the defendant produced a running account against the plaintiff, by way of set-off exceeding the sum of SOn dollars, which the justice rejected, because it was not fully substantiated ; and gave judgment for the plaintiff. It was held that the defendant being hound to set off his demand, if any part of it was proved, it ought to have been allowed, and if more than 25 dollars, a judgment ought to have been given against the- plaintiff for the balance, and that the justice er'od in rejecting the set-off altogether.

IN ERROR, on certiorari, from a justice’s court. Burke sued Smith before the justice, by a summons, in trover; and declared in assumpsit “ for the third part of eight bushels sowing of rye.” The defendant objected to the variance between the action stated iu the summons and the plaintiff’s declaration, but the justice overruled the objection. The defendant also objected the uncertainty of the plaintiff’s demand, but the objection was overruled. The defendant then pleaded the general issue, and produced a running account against the plaintiff, amounting to 229 dollars and 34 cents, by way of set-off; which the justice overruled, because it was not fully substantiated. A motion was then made for a nonsuit, on the ground that the matters exceeded the justice’s jurisdiction, but the objection was overruled; and a venire being demanded, the cause was tried by a jury, who found a verdict for the plaintiff, for 25 dollars, on which the justice gave judgment.

Without noticing other points, this judgment was erroneous in respect to the set-off. The defendant was bound to set off his account, and if the sum total proved to the satisfaction of the justice, amounted to 200 dollars, he had no jurisdiction, and ought to have nonsuited the plaintiff. He says the account was not fully substantiated, ,and so he rejected it. If it was substantiated to any sum less than 200 dollars, it ought to have been received and submitted to the jury, so that if the balance found for the defendant exceeded 25 dollars, judgment might have been entered against the plaintiff. To overrule the whole account would destroy it for ever, if this judgment remains in force.

Judgment reversed,